T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A    TREATISE 


ON    THE    LAW    OF 


PERSONAL   PROPERTY 


BY 

HORACE  E.  SMITH,  LL.  D. 

LATE    DEAN    OF   THE    ALBANY    LAW    SCHOOL 


SECOND  EDITION 

REVISED    AND    ENLARGED 


BY 

GEORGE  LAWYER 

OF   THE    ALBANY    BAR 

LECTURER    ON    THE   LAW    OF   CONTRACTS    AND    PERSONAL    PROPERTY 

IN    THE    ALBANY   LAW    SCHOOL 


CHICAGO 
T.  H.  FLOOD  AND  COMPANY 

LAW    BOOK    PUBLISHERS 


Entered   according   to    act   of    Congress,    In   the    year    eighteen   hundred 
and   ninety-three,   by 

HORACE    E.     SMITH, 
In  the   office  of   the    Librarian   of   Congress,   at   Washington,   D.    C. 


Copyright,  1908, 

BY 

JEANIE  OLIVER  SMITH. 
T 

I90g 


Printed  in  the  House  of  Severinghaus 


» 


PREFACE  111 


PREFACE 


In  the  early  history  of  our  law  under  the  English  feudal 
system,  personal  property  was  regarded  as  of  small  conse- 
quence in  comparison  with  real  estate.  The  latter  was  the 
measure  of  wealth,  and  the  gauge  of  social  and  political 
rank.  It  is  quite  different  at  present  with  the  relative  im- 
portance of  the  two  kinds  of  property,  especially  in  the 
United  States.  The  great  change  in  our  country  is  the  re- 
sult of  various  causes ;  among  which  may  be  mentioned  as 
prominent,  the  form  and  genius  of  our  government,  the 
character  of  our  institutions,  and  the  allodial  system  of 
land  ownership.  The  last  half  century  has  witnessed  an 
increase  in  new  and  varied  industries,  an  enlargement  and 
extension  of  commerce  and  manufactures,  little  less  than 
marvelous,  and  marked  changes  in  sociological  conditions, 
all  contributing  to  the  volume  and  great  importance  of  the 
law  of  personal  property.  The  cultivation  of  this  depart- 
ment of  jurisprudence  has  not  been  equal  to  its  demands, 
as  measured  by  the  importance  of  the  subject,  and  its  var- 
ied application  to  human  relations  and  affairs.  When  this, 
work  was  undertaken,  the  only  American  publication  treat- 
ing exclusively  upon  the  subject  of  Personal  Property, 
known  to  the  author,  was  the  learned  and  elaborate  work 
of  Mr.  Schouler,  in  two  volumes;  while  on  most  branches 
of  the  law  there  were  nimierous  text-books  at  command  of 
the  profession.  A  practice  of  many  years  in  the  profes- 
sion, supplemented  by  ten  years'  experience  with  students 
at  the  Albany  Law  School,  impressed  the  writer  with  the 
conviction  that  a  treatise  on  this  subject,  differing  some- 


735383 


IV  PREFACE 

what  in  character  and  aim  from  any  then  before  the 
public,  might  be  a  useful  addition  to  our  legal  literature. 
Under  this  conviction,  and  with  the  view  of  meeting  what 
seemed  to  be  a  want,  the  following  pages  were  prepared. 
The  plan  and  aim  of  the  work  is,  to  bring  the  leading  and 
essential  principles  of  the  law  of  personal  property  within 
a  narrow  compass,  and  in  such  a  manner  as  to  serve  the 
following  purposes :  First,  to  furnish  the  student  with  the 
means  of  acquiring  an  adequate  and  discriminating  knowl- 
edge of  the  subject,  without  unnecessary  and  confusing  dis- 
cussion; secondly,  the  practitioner  with  a  ready  and  relia- 
ble solution  of  questions  arising  in  the  exigencies  of  his 
professional  business,  when  time  is  wanting  for  extended 
research ;  and,  third,  to  meet  the  wants  of  those  outside  the 
legal  profession,  who  may  desire  to  obtain  a  knowledge  of 
the  general  principles  of  the  subject,  as  a  qualification  for 
business,  or  an  essential  to  a  liberal  education,  but  are  un- 
able to  devote  much  time  to  the  study.  In  carrying  out  his 
plan,  the  writer  has  endeavored  to  state  the  rule  or  prin- 
ciple of  law  on  points  in  question,  as  settled  by  the  weight 
of  authority,  in  a  manner  as  clear  and  succinct  as  practi- 
cable, without  entering  at  large  upon  philosophical  discus- 
sion, or  marshaling  in  the  text  an  array  of  conflicting  cases. 
Yet,  sufficient  references  to  decided  cases,  and  standard 
text-books,  have  been  furnished  to  facilitate  an  exhaustive 
examination  of  questions  when  necessary  or  desirable. 
Special  care  has  been  taken,  however,  to  formulate  defini- 
tions, and  state  principles,  with  such  perspicuity  and  relia- 
ble accuracy  as  to  render  extended  research  unnecessary. 

The  author  might  have  constructed  a  more  elaborate  and 
imposing  work  with  much  less  cost  of  time,  thought,  and 
labor;  but  the  product,  he  believes,  would  have  been  less 
intrinsically  valuable  for  the  purpose  intended.     If  he  has 


PREFACE  V 

succeeded  to  a  reasonable  extent  in  realizing  his  purpose, 
the  reader  will  find  in  one  small  volume  all  the  leading  and 
essential  principles  of  this  department  of  law,  so  system- 
atized and  presented  as  to  be  easily  available  for  study  or 
use.  The  author  has  not  the  vanity  to  think  that  his  work 
is  free  from  imperfections ;  but  he  hopes  that  it  may  prove 
useful  to  the  classes  for  which  it  is  designed,  and  trusts 
that  it  will  be  received  with  considerate  kindness  by  a  lib- 
eral profession. 


PREFACE  TO  THE  SECOND  EDITION 


Nearly  fifteen  years  have  elapsed  since  the  first  edition 
of  this  work  was  published.  By  statute  and  by  decision 
the  rules  applying  to  certain  branches  of  the  law  of  per- 
sonal property  have  been  so  materially  modified  or  ex- 
tended that  the  value  of  the  work  as  a  present  authority 
necessitated  an  enlargement  and  revision. 

The  excellent  plan  and  arrangement  adopted  by  Mr. 
Smith  have  been  retained  and  changes  have  been  made 
only  where  unavoidable  for  a  proper  presentation  of  the 
subject. 

Many  recent  decisions  in  explanation  or  illustration  of 
the  various  rules  and  principles  have  been  collected  and 
cited,  with  especial  reference  to  such  cases  as  may  have 
application  to  those  portions  of  the  law  concerning  which 
authorities  have  not  been  uniform. 

It  is  believed  that  this  edition  may  be  found  of  present 
assistance,  both  to  student  and  practitioner,  in  the  knowl- 
edge and  application  of  the  law  of  personal  property. 

Albany,  N.  Y.,  October  31,  1907.  G.  L. 

b 


TABLE  OF  CONTENTS 


CHAPTER  I. 

INTRODUCTORY;  DEFINITION  AND  USES  OF  THE  WORD 
PROPERTY;  GENERAL  CLASSIFICATIONS. 

PAGE 

§     I.    Definition  of  the  term,  "property" 1 

2.  Uses    of    the    term 2 

3.  Real,    and    personal,    property 2,3 

4.  Absolute,  and  qualified,  property 3 

5.  Limitations  of   absolute   ownership 3, 4 


CHAPTER    n. 
CHARACTERISTICS  OF  PERSONAL  PROPERTY. 

§    6.     Mobility     5 

7.  Change  from  personal  to  real,  and  vice  versa 5,  6 

8.  Duration  of  the  time  of  enjoyment 6 


CHAPTER   HI. 

IRREGULAR  SPECIES   OF   PROPERTY. 
I.  Fixtures. 

§    9.  What    are    fixtures 7,8 

10.  Rules  for  guidance 8, 9 

11.  Between  what  parties 10 

12.  Time    of    removal 10,  1 1 


X  TABIvE  OF  CONTENTS. 

II.  Emblements. 

PAGE 

§  13.  What  are  emblements 12 

14.  What  products  the  tenant  may  remove 12,  13 

15.  Who,  and  when,  entitled  to  emblements 13-15 

16.  Incidents 15 

III.  Heir-looms. 

17.  Character,  and  law  of,  defined 16, 17 

IV.  Manure. 

18.  When  real,  and  when  personal,  property 17,  18 

V.  Church  Furniture. 

19.  Law  of  this  species  of  property 18-20 

VI.  Mortuary  Property. 

20.  Kinds,  legal  rules,  and  burial  rights 20, 21 


CHAPTER    IV. 

NOMENCLATURE,    AND     SUBORDINATE    DIVISION     OF 
PERSONAL  PROPERTY. 

§  21 .     Chattels,    real,    and   personal 22,  23 

22.  C hoses  in  possession ;  choses  in  action 23,  24 

23.  Estate,   real,   and  personal 24-26 

24.  Goods,  wares,  merchandise,  effects,  credits 26, 27 

25.  Personal  property  in  expectancy 27, 28 


CHAPTER  V. 
PERSONAL  PROPERTY,   HOW   HELD,   OR  OWNED. 

§  26.    Joint  owners   29-31 

27.  Ownership  in  common 31-34 

28.  Part-owners  of    ships    34-35 

29.  Partners    35-38 

30.  Corporations    38-42 

31.  Joint  stock  companies  42-45 


TABI,E  OF  CONTENTS.  XI 

CHAPTER   VI. 

MODES  OF  ACQUIRING  TITLE  TO  PERSONAL  PROPERTY. 

PAGE 

§•  32.     Modes  of  acquiring  title  classified 46, 47 

First.     By  original  acquisition,  embracing: 

1.  Occupancy,  including. 

(a)  Goods  taken  by  capture  in  war ; 

(b)  Goods    casually    lost    by    the    owner,    and 
unreclaimed,     or     designedly     abandoned; 

(c)  Waifs;  and 

(d)  Reclamation    of     animals    ferae    naturae. 

2.  Accession,  including; 

(a)  Fruits  of  the  earth  produced  naturally  or 
by  human  industry ; 

(b)  The  increase  of  animals ; 

(c)  Materials    of    one    person    united    to    the 
materials  of  another ;   and 

(d)  Confusion  of  goods. 

Second.     Transfer  by  act  of  law,  embracing: 

1.  Forfeiture; 

2.  Succession; 

3.  Judgment ; 

4.  Intestacy ; 

5.  Insolvency;  and 

6.  Marriage. 

Third.     Transfer  by  act  of  the  parties,   including: 

1.  Gifts  inter  vivos; 

2.  Gifts  causa  mortis; 

3.  Title  by  will  or  testament ; 

4.  Sales ; 

5.  Indorsements ; 

6.  Assignments ;  and 

7.  Bailments. 


CHAPTER    VH. 

TITLE  BY  ORIGINAL  ACQUISITION. 

§  33.    Occupancy,    the    first    known    method    of    acquiring 

title    48-51 


Xll  TABLE  OF  CONTENTS. 

PAGE 

§  34.  Goods  taken  by  capture  in  war 51-53 

35.  Goods  lost  or  abandoned 54-57 

36.  Waifs    57 

27.  Reclamation  of  animals  ferae  naturae 58-60 

38.  Title  by  accession  60, 61 

39.  Fruits  of  the  earth   61 

40.  Increase  of  animals    61, 62 

41.  Materials  of   one   person  united  to   the   materials   of 

another  62-65 

42.  Products  of  intellectual  labor 66 

43.  Patents  for  inventions  and  designs 66-68 

44.  Essentials  of  a  patentable  invention,  etc 68-71 

45.  Mode  of  obtaining,  and  conditions,  of  a  valid  patent  72-74 

46.  Other  points  in  the  law  of  patents 74-76 

47.  Copyright     76-78 

48.  How  to  secure  the  statutory  right 78-81 

49.  Essentials  to  copyright 81-84 

50.  Remedies  for  infringement 84,  85 

51.  Letters  from  one  correspondent  to  another 85-87 

52.  Lectures    87-89 

53.  Trade-marks    89-97 

54.  A  common  law  right 90, 91 

55.  What  may  constitute  a  trade-mark 91,  92 

56.  By  whom  acquired   92, 93 

57.  Freedom  from  fraud 93,  94 

58.  How   acquired    94,95 

59.  Infringement    95, 96 

60.  Remedies  for  infringement 96, 97 


CHAPTER    VIII. 

THE  SECOND  GENERAL  MODE  OF  ACQUIRING  TITLE  TO 
PERSONAL  PROPERTY— TRANSFER  BY  ACT  OF  LAW. 

§  61.     Special  modes  included  in  this  division 98 

I.  Forfeiture. 

62.  Definition,  and  examples 98,  99 

63.  England,   and  United   States 99 


TABLE  OF  CONTENTS.  XIU 

PAGE 

^  64.     When  title  passes   99, 100 

65.  Forfeiture  odious  100 

II.  Succession. 

66.  Definition,  and  kinds 100, 101 

67.  Common   law   succession 101, 102 

III.  Judgment. 

68.  Definition   102,103 

69.  Judgments  which  transfer  title 103-105 

IV.  Intestacy. 

70.  Definition,  history,  and  incidents 105-108 

V.  Insolvency. 

71.  Meaning    of     the    terms     "insolvency"     and     "bank- 

ruptcy"       108,  109 

72.  Distinction   between   bankrupt,   and    insolvent,    laws..  109,110 

73.  General  purposes,  and  effect,  of  insolvent  laws 110,111 

74.  United  States  bankrupt,  and  insolvent,  laws Ill,  112 

VI.  Marriage. 

75.  Transfer  of  chattels  by  marriage 113 

76.  As  to  the  wife's  chases  in  action 113,  114 

77.  No  unjust  discrimination  against  the  wife 114,115 


CHAPTER   IX. 

THE  THIRD  GENERAL  MODE  OF  ACQUIRING  TITLE  TO 

PERSONAL  PROPERTY— TRANSFER  BY 

ACT  OF  THE  PARTIES. 

I.  Gifts  inter  vivos. 

§  78.     Definition,  and  subjects  of  these  gifts 116,117 

79.  DeHvery  essential 117, 118 

80.  Vahdity  of  gifts   118 

81.  Gifts  on  condition,  with  reservation,  or  a  trust 119 

82.  Gifts  between  parent  and  child 119, 120 

83.  Gifts  between  husband  and  wife 120 

84.  Revocation  of  gifts 120 


XIV  TABLE  OF  CONTENTS. 

II.  Gifts  causa  mortis. 

PAGE 

§  85.  Definition    121, 122 

86.  Essentials  to  this  gift 122,  123 

87.  Title  of  donee,  delivery,  and  effect 123, 124 

88.  Revocation   124,125 

89.  Not  favored  in  law 125 

III.  Title  by  Will  or  Testament. 

90.  Why  assigned  to  this  division 125, 126 

91.  Last  will  and  testament  defined 127 

92.  Testamentary  capacity   127-129 

93.  Written,  and  unwritten,   wills 130 

94.  Revocation   130,  131 

95.  When  the  will  takes  effect 132 

IV.  Sales. 

96.  Sale  defined  132, 133 

97.  Elements  of  a  vaHd  sale 134 

98.  Parties  competent  to  contract 134 

99.  Mutual  assent 134-136 

100.  The  subject  of  the  sale 136-138 

101.  A  price  in  money,  paid  or  promised 138 

102.  The  Statute  of  Frauds 138-152 

103.  Contract  in  respect  of  passing  title 152-157 

104.  Mistake;    failure,   and  illegalitj',   of   consideration....  157-160 

105.  Fraudulent   sales    160-166 

106.  Illegal  contracts  of  sale 166,  167 

107.  Conditions,  and  conditional  sales 167,  168 

108.  Warranty   169-172 

109.  Delivery  in  performance  of  the  contract 172-176 

110.  The  vendor's  lien 176 

111.  Stoppage  in  transitu 176-179 

112.  Payment  and  tender 179-186 

113.  Remedies  of  the  vendor 186-189 

114.  Remedies  of  the  vendee 190-194 

V.  Indorsement. 

115.  Title  by,  and  kinds 194, 195 


TABLE  OF  CONTENTS.  XV 

VI.  Assignment. 

PAGE 

§  116.    Acquisition  of   title  by 195,196 

VII.  Assignment. 
117.     Special  property  in  bailee 196, 197 

CHAPTER  X. 

LIMITATIONS. 

§  118.     History  and  purpose 198,  199 

119.  When  the  limitation  begins 200,  201 

120.  New  promise 201-205 


CHAPTER   XI. 
INSURANCE. 

§  121.     Definition,  and  terms  employed 206, 207 

122.  Nature,  and  form,  of  the  contract 207-209 

123.  Classes  of  policies 209-21 1 

124.  Consummation  of  the  contract 211-214 

125.  Subject-matter   of    the  contract 214 

126.  Insurable  interest  214-216 

127.  Waranties,  and  representations 216-219 

128.  Special  provisions  of  the  contract 219-222 

129.  Mutual  insurance 222-224 


CHAPTER    Xn. 

LEGACIES,  AND  DISTRIBUTIVE  SHARES. 

I.  Legacies. 

§  130.     Definition,  and  principal  classes 225-227 

131.  Minor  divisions,  rules  and  incidents 227,231 

132.  Abatement,  ademption,  payment  and  satisfaction....  231-235 

I.  Distributive  Shares. 

133.  Defined  and  explained 235, 236 


XVI  TABLE  OF  CONTENTS. 

CHAPTER    XIII. 
STOCK,  AND  STOCKHOLDERS. 

PAGE 

§  134.     Stock,  and  shares  of  stock,  defined 237-239 

135.  Methods  of  acquiring  title  to  stock 239-241 

136.  Liability  of  stockholders 241-251 

137.  The  assets  on  dissolution 251-253 

MISCELLANEOUS    SPECIES    OF    PERSONAL    PROPERTY 
NOT   HEREINBEFORE   SPECIFICALLY   TREATED. 

I.  Money. 

§  138.    What   it    is 254 

139.  Constitutional  money    254-257 

140.  Subject  to  levy  under  execution 257, 258 

II.  Debts. 

141.  Definition,  and  classification 258-266 

142.  Debt,   how   discharged 266-273 

III.  Mortgages. 

143.  Definition,  and  essential  elements 274 

144.  Formal  requisites  274-276 

145.  Subjects  of  a  chattel  mortgage 276-278 

146.  Possession  of  the  mortgaged  property 279,  280 

147.  Mortgage  distinguished  from  pledge 280,  281 

148.  Equity  relief  of  mortgagor 282 

149.  Conditional  sales  with  the  right  to  repurchase,  dis- 
tinguished      283 

150.  Foreclosure  of  the  equity  of  redemption 284, 285 

IV.  Bottomry,  and  respondentia,  bonds. 

151.  Defined  and  explained 285, 286 

152.  Hypothecation  by  the  master,  or  the  owner 286,287 

153.  Miscellaneous  rules  287-289 

V.  Rent. 

154.  Definition   and  properties 290 

155.  The  kinds  of  rent 291, 292 


TABLE  OF  CONTENTS.  XVU 

PAGE 
§  156.     Remedy  by  distress  for  rent  in  arrear 292-297 

157.  Remedies  by  action  at  law,  and  a  suit  in  equity 297-300 

158.  Obligation  to  pay  rent ;  eviction  a  defense 300-302 

159.  Apportionment   of   rent 302-304 


CHAPTER   XV. 

DEVOLUTION  OF  PERSONAL  PROPERTY  ON  DEATH  OF 

OWNER. 

§  160.    General  rules    305,306 


THE   LAW   OF 
PERSONAL   PROPERTY 


CHAPTER  I. 

INTRODUCTORY.— DEFINITION     AND     USES     OF     THE 
WORD  "PROPERTY."— GENERAL  CLASSIFICATIONS. 

§  1.  Definition  of  the  term. 

2.  Uses  of  the  term. 

3.  Real,  and  personal,  property. 

4.  Absolute,  and  qualified,  property. 

5.  Limitations  of  absolute  ownership. 


§  1.  Definition  of  the  term.~The  word  "property" 
may  be  defined  briefly  as  the  exclusive  right  of  possessing, 
enjoying,  and  disposing  of,  lands  and  chattels.^  The  term 
"exclusive  right,"  however,  does  not  confine  the  ownership 
to  a  single  individual,  for  the  property  may  be  owned  by  two 
or  more  persons  at  the  same  time,  jointly,  or  in  common;^ 
nor  does  it  necessarily  imply  immediate  possession ;  for 
there  may  be  an  intermediate  and  temporary  rightful  pos- 
session by  a  third  party  having  a  special  or  qualified  prop- 
erty in  the  subject  of  ownership;  as  in  cases  of  life  in- 
terest, a  mere  usufruct,  a  lease,  a  bailment,  or  a  trustee- 
ship. The  exclusive  right  in  our  definition  of  property,  is 
the  ultimate  proprietary  right  vested  in  one  or  more  per- 
sons as  owners. 

1  Sch.  Pers.  Prop.  pp.  4,  5;  And.  L.  Diet.  "Property;"  Bouv.  L. 
Diet.  "Property ;"  1  Cooley's  Black,  p.  139,  notes  18,  19 ;  Jackson 
V.  Housel,  17  Johns.  281,  283 ;  Morrison  v.  Semple,  6  Binn.  Pa.  94. 

2  See  infra  §§  26,  27 ;  Bouv.  L.  Diet.  "Property,"  sub.  4. 

1 


2  USES  OF  TERM  "PROPERTY."  [§§  2,  3. 

§  2.  Uses  of  the  term. — The  word  "property"  as  used 
in  the  law,  has  two  general  significations;  first,  to  indicate 
the  right  or  interest  of  a  person  in  or  to  the  subject  in 
question,  as  whether  absolute  or  qualified;  the  absolute 
right  being  the  ultimate,  exclusive  proprietary  right,  con- 
stituting ownership;  and  the  qualified  property  being  an 
intermediate,  limited  and  temporary  interest,  or  a  rightful 
possession.^  And,  second,  in  connection  with  qualifying 
words  it  characterizes  the  particular  subject  or  kind  of 
property  in  question,  in  respect  of  classification,  as  whether 
real  or  personal.*  In  other  words,  it  is  used  both  to  indi- 
cate the  kind  of  class  of  property  in  question,  and  the  in- 
terest of  a  party  therein;  sometimes  the  one,  and  some- 
times the  other. 

§  3.  Real,  and  personal,  property. — The  principal  line 
of  distinction  between  the  two  classes  runs  between  mobility 
and  immobility.  Real  property  is  that  which  is  immovable 
and  permanent  in  its  character  or  use.  Under  the  feudal 
law  it  was  designated  by,  and  embraced  in,  the  terms 
"lands,  tenements  and  hereditaments."  The  term  real 
property,  as  now  used  in  contradistinction  to  personal  prop- 
erty, includes  land,  together  with  permanent  structures 
upon  and  under  its  surface;  and,  in  legal  contemplation, 
land  extends  upwards  usquoe  ad  coclum,  and  downwards 
itsquoe  ad  inferos.  It  will  be  seen,  however,  in  a  subsequent 
chapter,  that  certain  things  personal  in  their  character  are, 
under  some  circumstances,  regarded  as  part  of  the  realty. 

Personal  property  is  movable  in  its  nature,  and  embraces 
every  species  of  property  not  possessing  the  characteristics 
of  real  property,  as  above  defined.^ 

3  Bouv.  L.  Diet.  "Property,"  sub.  3 ;  see  infra  §  4 ;  And.  L.  Diet. 
"Absolute  Property." 
*  See  infra  §  3. 
s  Tiede.  on  R.    Prop.  §§   1,   2;    Bouv.    L.   Diet.   "Real    Property," 


§§4,5.]  ABSOIvUTE,  AND  QUALIFIED,  PROPERTY.  3 

As  personal  property  constitutes  the  subject  of  this  treat- 
ise, its  characteristics  will  be  more  fully  shown  in  subsequent 
chapters. 

§  4.  Absolute,  and  qualified,  property. — Absolute  prop- 
erty consists  in  a  full  and  complete  title  to,  and  dominion 
over,  a  thing.  Qualified  property  is  a  temporary  or  special 
interest  in  a  thing,  which  is  liable  to  be  totally  extinguished 
by  the  occurrence  of  some  particular  contingency,  without 
the  act  of  the  intermediate  possessor  or  properietor.  For 
examples  of  this  class  may  be  mentioned  the  interest  of  a 
person  in  light;  title  to  animals  feroe  naturae  when  cap- 
tured; the  interest  of  a  bailee  in  goods  bailed  or  pledged; 
the  title  of  executors  and  administrators  to  decedent's  es- 
tate; and  title  of  trustees  and  guardians  to  the  trust  estate. 
And,  the  legal  title  to  a  thing  may  be  in  one  person 
and  the  equitable  interest  in  another,  at  one  and  the  same 
time.*' 

§  5.  limitations  of  absolute  ownership, — iVbsolute  own- 
ership of  property  is  limited  by  the  necessary  conditions  of 
organized  society  and  civil  government: 

First.  A  person  is  not  at  liberty  to  so  use  his  own  as  to 
injure  the  right  of  another.  Sic  utere  tuo  ut  alienum  non 
loedas  is  the  legal  maxim." 

Second.  The  State,  under  what  is  known  as  the  police 
power,  has  authority  to  control  the  use  of  property  in  the 
hands  of  its  owner,  within  certain  limits ;  and,  in  some  cases, 

"Personal  Property;"  1  Sell.  Pers.  Prop.  p.  25;  2  Black.  Com. 
p.  385;  2  Kent,  Com.  pp.  340,  341  and  note. 

«Bouv.  L.  Diet.  "Property,"  sub.  3;  2  Kent,  Com.  pp.  347,  348; 
2  Sch.  Pers.  Prop.  p.  695 ;  Edw.  Bail.  §§  36-42,  369-372. 

7  Broom's  Leg.  Max.  pp.  275-289;  1  Sch.  Pers.  Prop.  p.  21 ;  1 
Cooley's  Black,  pp.  217-219;  Bishop,  Non-Cont.  Law.  §§  14,  15, 
412-422. 


4  LIMITATIONS.  [§  5. 

even  to  take  it  from  him  without  his  consent  and  against 
his  will.    Salus  populi  suprema  lex} 

Third.  The  citizen  owes  to  government  allegience  and 
support,  in  return  for  protection  and  benefits  received;  and 
the  government  has  a  rightful  claim  upon  so  much  of  his 
property  as  may  be  requisite  for  its  maintenance  and  due 
administration.  On  this  claim  rests  the  authority  for  tax- 
ation.' 

Fourth.  The  prerogative  of  eminent  domain,  is  a  sover- 
eign power  of  the  state,  by  which  private  property  may  be 
taken  for  public  use  without  the  consent  of  the  owner.  This 
power  is  lodged  in  the  Legislature  as  the  representative  of 
the  state,  and  its  exercise  conditioned,  in  this  coimtry,  upon 
providing  for  compensation  to  the  owner.^" 

Fifth.  The  property  of  every  person  is  liable  for  the  sat- 
isfaction of  all  his  just  debts,  except  in  so  far  as  it  may  be 
exempt  by  statute.  He  cannot  legally  alienate  his  property 
by  gift,  or  otherwise  dispose  of  it,  in  fraud  of  his  creditors. 
A  bona  fide  purchaser,  however,  will  be  protected  as  having 
an  equity  superior  to  that  of  a  creditor. ^^  The  enforcement 
of  this  limitation  is  ordinarily  effected  through  the  instru- 
mentality of  the  courts  of  justice.^^ 

8  Broom's  Leg.  Max.  pp.  2-7 ;  Bishop,  Non-Cont.  Law.  §§  91-96 : 
Thurlow  V.  Mass.  5  How.  U.  S.  Rep.  504. 

9  1  Sch.  Pers.  Prop.  pp.  22-24;  1  Story,  Const.  §§  906-1053;  Coo- 
Icy,  Const.  Law,  pp.  54-62;   Cooley,  Const.  Lim.  pp.  479-521. 

I'' 2  Kent,  Com.  p.  339;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §573;  1 
Sch.  Pers.  Prop.  pp.  22-23;  Bishop,  Non  Cont.  Law,  §  119;  Const. 
U.  S.  Amend'ts  Art.  V.;  Barron  v.  Baltimore,  7  Pet.  243;  Withers 
V.  Buckley,  20  How.  U.  S.  Rep.  84;  Transportation  Co.  v.  Chicago, 
99  U.  S.  Rep.  635,  642;  Kohl  v.  United  States,  91  U.  S.  Rep.  367; 
Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  344,  445. 

"Bishop,  Cant.  (2nd  Enl.  Ed.),  §§  1200-1213;  1  Sch.  Pers. 
Prop.  p.  21 ;  1  Whart.  Cont.  §  2>77. 

"2  Kent,  Com.  pp.  340,  341  (note  a)  ;  2  Black.  Com.  pp.  16,  17, 
384,  385-397;  1  Sch.  Pers.  Prop.  p.  25;  Tiede.  R.  Prop.  §  1. 


§§  6,  7.]  CHARACTERISTICS.  5 

CHAPTER  II. 

CHARACTERISTICS  OF  PERSONAL  PROPERTY. 

§  6.  Mobility. 

7.  Change  from  personal  to  real,  and  vice  versa. 

8.  Duration  of  the  time  of  enjoyment. 

§  6.  Mobility. — The  leading  and  essential  characteris- 
tic of  personal  property  and  that  which  distinguishes  it 
from  real  property  is  mobility.  Under  this  distinction  it 
is  quite  easy  to  classify  all  subjects  of  property  that  are 
tangible;  but  without  further  instruction  the  student  might 
find  difficuly  in  the  case  of  intangible  property,  of  which 
there  is  a  large  class,  such  as  debts,  obligations,  and  the 
like,  dominated  c hoses  in  action.  These,  in  contemplation 
of  law,  are  movable.  They  are  supposed  to  attend  the 
person  of  the  owner,  are  subject  to  the  laws  of  his  domicile 
in  case  of  intestacy  and  insolvency,  and  actions  concerning 
them  are  generally  transitory. 

§  7.  Change  from  personal  to  real,  and  vice  versa. — 

Through  the  operations  of  nature,  or  the  act  of  man,  things 
immovable  in  their  character  become  movable,  so  as  to 
change  them  from  real,  to  persojial,  property,  and  vice 
versa.  Examples  of  real,  changed  to  personal,  property: 
A  tree  while  growing  on  the  land  is  real  property,  but  when 
felled  and  cut  into  timber  or  wood  it  becomes  personal ; 
minerals  while  in  the  earth  are  part  of  the  realty,  but  when 
quarried  they  become  personal  property;  and  growing  fruit 
trees  are  real  property,  but  their  severed  fruit  is  personal. 
Examples  of  personal,  changed  into  real,  property:  Build- 
ing materials,  which  are  personal  property,  when  wrought 
into  a  house  become  real;  a  young  tree  planted  temporarily 
in  a  nursery  is  personal  property,  but  when  sold  and  trans- 


6  DURATION   OF   ENJOYMENT.  [§  8. 

planted  it  is  converted  into  real  property.  Ice  when  taken 
from  the  water  for  purposes  of  merchandise  becomes  a 
chattel  or  chose  in  possession.^ 

§  8.  Duration  of  the  time  of  enjoyment. — But  the  term 
pcrso)ial  property,  at  common  law,  includes  more  than  is 
characterized  by  the  word  movable.  Duration  of  the  time 
of  enjoyment  is,  in  some  cases,  a  determining  factor  in  the 
classification,  placing  in  the  general  division  of  personal 
property  things  immovable  in  their  nature. 

In  the  English  law,  any  interest  in  the  realty  less  than 
a  life  estate  was  classed  as  personal  property.  This  was  due 
to  the  fact  that  under  the  feudal  system  personal  property 
was  regarded  as  of  small  importance  compared  with  real 
estate;  an  interest  in  land  limited  in  duration  to  a  deter- 
minate period  did  not  rise  to  the  dignity  of  a  freehold, 
and  was  consigned  to  the  inferior  rank  of  personal  prop- 
erty. 

In  the  progress  of  events,  the  advance  of  civilization,  and 
the  expansion  of  commerce,  there  has  been  a  marked  change 
in  the  comparative  importance  of  the  two  classes  of  prop- 
erty, especially  in  the  United  States;  yet  the  old  classifica- 
tion remains  unchanged  at  common  law.  Hence  it  is  that  a 
life  estate  in  lands  and  tenements  is  real  property,  while  an 
estate  for  years  ranks  as  personal  property,  although  the 
years  of  the  latter  may  far  outnumber  the  years  of  the 
former.  Personal  property,  then,  includes  two  elements, 
mobility  and  duration  of  the  time  of  enjoyment.- 

1  Sch.  Pers.  Prop.  pp.  26,  27 ;  Crooch  v.  Smith,  1  Md.  Ch.  Rep. 
401;  Golden  v.  Clock,  57  Wis.  118;  Lewis  v.  Rosier,  16  West  Va. 
Rep.  333;  Higgins  v.  Kusterer,  41  Mich.  318. 

2  Pom.  Mun.  Law.  §§  376,  377;  2  Black.  Com.  pp.  385-388;  2 
Kent,  Com.  pp.  341-343;  4  Kent,  Com.  pp.  93-95;  1  Sch.  Pers. 
Prop.  pp.  27,  28;  Williams.  Pers.  Prop.  pp.  1,  2,  and  note  1. 


§  9.]  FIXTURES.  7 

CHAPTER  III. 

IRREGULAR  SPECIES  OF  PROPERTY. 

Fixtures. 
§  9.  What  are  fixtures. 

10.  Rules   for  guidance. 

11.  Between  what  parties. 

12.  Time  of   removal. 

Emblements. 

13.  What  are  emblements. 

14.  What  products  the  tenant  may  remove. 

15.  Who,  and  when,  entitled  to  emblements. 

16.  Incidents. 

Heir-looms. 

17.  Character,  and  law  of,  defined. 

Manure. 

18.  When  real,  and  when  personal,  property. 

Church  Furniture. 

19.  Law  of  this  species  of  property. 

Mortuary  Property. 

20.  Kinds,  legal  rules,  and  burial  rights. 

There  are  certain  species  of  property  which,  for  reasons 
appearing  in  this  chapter,  are  irregular  in  respect  of  classi- 
fication, and  require  separate  notice. 

1.  Fixtures. 

§  9.  What  are  fixtures. — They  are  things  which,  though 
personal  in  their  nature,  may  become  real  property  when 
annexed  to,  or  used  in  connection  with,  the  freehold.  They 
are  ambulatory,  being  sometimes  on  one  side  of  the  divid- 


8  FIXTURES.  [§  10. 

ing  line  between  real  and  personal  property,  and  again  on 
the  other.  On  which  side  of  the  line  the  law  will  place  a 
thing  in  a  given  case  nmy  depend  upon  one  or  more  of 
these  conditions:  1,  the  permanency  of  the  annexation; 
2,  the  purpose  and  use  of  the  thing  annexed;  3,  the  inten- 
tion of  the  parties ;  and  4,  other  circumstances  being  the 
same,  the  turning  point  may  be  the  parties  concerned,  or, 
in  other  words,  the  parties  between  whom  the  question  is 
raised.^ 

§  10.  Rules  for  guidance. — The  subject  of  fixtures  has 
caused  considerable  perplexity  in  the  administration  of  the 
law;  and  it  is  impossible,  in  a  concise  discussion,  to  relieve 
it  from  all  practical  difficulties ;  but  a  few  rules,  deduced 
from  the  authorities,  may  be  helpful  to  the  student  and 
practitioner. 

1.  Annexation  to  the  soil,  either  actual  or  constructive, 
is  requisite  to  convert  a  thing  personal  in  its  nature  into 
a  fixture.  Achial  annexation  implies  physical  attachment 
to  the  freehold ;  constructive  annexation  is  that  which  ex- 
ists in  contemplation  of  law,  where  there  is  no  actual  physi- 
cal attachment.-  To  the  latter  kind  belong  things  adapted 
for  use  in  connection  with  the  realty;  and  things  essential 
to  the  beneficial  enjoyment  of  the  premises;  as  deeds  and 
other  muniments  of  title,  keys,  fencing  materials,  family 
pictures,  and  other  things  of  like  character  and  use. 

iTiede,  R.  Prop.  §§  3-7;  1  Sch.  Pers.  Prop.  pp.  135-160;  And.  L. 
Diet.  "Fixtures ;"  Bouv.  L.  Diet.  "Fixtures ;"  2  Kent,  Com.  pp. 
343-347 ;  Williams,  Pers.  Prop.  pp.  343-347,  and  notes ;  Wadleigh 
V.  Janvrin,  41  N.  H.  503;  Prescott  v.  Wells,  3  Nev.  82;  State  v. 
Bonham,  18  Ind.  231;  Sampson  v.  Graham,  96  Pa.  St.  405;  Teaff 
V.  Hewitt,  1  Ohio  N.  S.  511. 

2Tiede,  R.  Prop.  §  3;  1  Sch.  Pers.  Prop.  pp.  137-139;  Bouv.  L. 
Diet  "Fixtures,"  sub.  2 ;  Williams,  Pers.  Prop.  p.  14,  n.  1 ;  And. 
L.  Diet.  "Fixtures." 


§  10.]  FIXTURES.  9 

2.  As  a  general  rule,  things  actually  annexed  to  the  free- 
hold become  part  of  the  realty;  and  they  so  remain  when 
their  removal  cannot  be  effected  without  serious  injury  to 
the  freehold.^  But,  when  their  removal  can  be  effected 
without  such  injury,  there  are  cases  in  which  annexation 
does  not  convert  personal  into  real  property.  For  example, 
where  the  things  has  been  annexed  for  the  purpose  of  carry- 
ing on  a  trade;  where  it  is  manifest  that  it  is  the  intention 
to  use  the  fixture  in  some  employment  distinct  from  that  of 
the  occupant  of  the  real  estate;  and,  generally,  when  it  is 
clearly  the  intention  of  the  parties  concerned  that  the  thing 
annexed  shall  not  become  a  part  of  the  realty.* 

3.  In  some  cases,  where  the  attachment  to  the  freehold 
is  slight,  or  where  things  permanently  used  in  connection 
with  the  land  are  temporarily  detached,  they  may  be  re- 
garded as  fixtures  passing  with  the  land.  For  example, 
hop-poles  stacked  in  piles;  rolls  in  an  iron  mill  lying  loose 
in  the  mill;  and  machinery  fastened  by  screws  to  the  floor. 
Here,  intention  may  become  an  important  factor  in  deter- 
mining the  class  of  the  thing  in  question. 

4.  It  should  be  remembered  that  the  common  law  on  this 
subject  is  sometimes  modified  by  statutory  enactments;  and 
these  must  be  examined  in  all  cases  to  which  they  apply. 
For  example,  in  New  York  the  rule  as  between  the  heir  and 
the  executor  is  fixed  by  statute. 

3  Citations  supra,  under  §  9 ;  Tayl.  Land,  and  Ten.  §  550 ;  Bouv. 
L.  Diet.  "Fixtures,"  sub.  3;  1  Sch.  Pers.  Prop.  p.  140;  And.  L. 
Diet.  "Fixtures." 

*1  Sch.  Pers.  Prop.  p.  141,  and  citations  supra,  under  §  9;  Pot- 
ter V.  Cromwell,  40  N.  Y.  287;  McRea  v.  Central  Nat.  Bank  of 
Troy,  66  N.  Y.  489;  Potts  v.  New  Jersey  Arms,  etc.,  Co.,  17  N.  J. 
Eq.  395;  Hill  v.  Wentworth,  28  Vt.  428;  Henkle  v.  Dillon,  15  Ore. 
610;  Smith  v.  Waggoner,  50  Wis.  155;  McCIintock  v.  Graham,  3 
McCord  (S.  C),  553;  Ottoman  Woolen  Mills  Co.  v.  Hawley,  44 
Iowa,  57;  Bishop  v.  Bishop,  11  N.  Y.  123. 


10  FIXTURES.  [§§11,12. 

§  11.  Between  what  parties. — The  question  whether  in 
a  particular  case  a  thing  is,  or  is  not,  a  fixture,  and  also  the 
right  of  removing  the  same,  may  depend  for  solution  upon 
the  parties  interested.  Such  parties  are,  1,  the  heir  and  the 
executor;  2,  devisees  and  the  executor;  3,  the  executor 
of  the  tenant  for  life,  and  the  remainder-man  or  rever- 
sioner ;  4,  vendor  and  vendee ;  5,  mortgagtor  and  mortgagee ; 

6,  debtor  and  creditor,  and  the  heir  or  vendee  and  the 
widow,  in  respect  to  premises  set  off  to  her  for  dower ;  and, 

7,  landlord  and  tenant.  In  the  first,  second,  fourth,  fifth, 
and  sixth  of  these  classes  the  general  rule  is  that  things 
firmly  annexed  to  the  freehold  pass  with  it  respectively  to 
the  heir,  devisee,  vendee,  mortgagee,  heir  or  vendee  and 
the  widow;  and  cannot  be  removed  by  the  other  parties, 
while  in  the  third  and  seventh  classes  the  right  of  removal 
belongs  respectively  to  the  executor  of  the  tenant  for  life, 
and  the  tenant.  Especially  is  the  rule  against  removal  re- 
laxed in  favor  of  tenants.  As  between  landlord  and  ten- 
ant the  prevailing  doctrine  now  is,  that  the  latter  may  re- 
move all  fixtures  annexed  by  him  for  trade,  agriculture,  or 
domestic  use  and  convenience,  when  such  removal  will  not 
result  in  serious  and  permanent  injury  to  the  freehold.^ 

§  12.  Time  of  removal. — The  right  of  removing  fixtures 
may  be  affected  by  the  time  of  its  attempted  exercise. 

1.  A  tenant  for  years  may  remove  them  at  any  time  be- 
fore he  yields  possession,  although  he  may  be  holding  over. 
When  the  landlord  has  resumed  possession  the  fixtures  be- 
come his  property,  and  the  tenant's  right  of  removal  is 
gone. 

^  Citations  supra,  under  §  9 ;  Despatch  Line  of  Packets  v.  Bel- 
lamy Mf'g  Co.,  12  N.  H.  205;  Dudley  v.  Hurst,  67  Md.  44;  Schei- 
fele  V.  Schmitz,  42  N.  J.  Eq.  700;  Maguire  v.  Park,  140  Mass.  21; 
Fullington  v.  Goodwin,  57  Vt.  641 ;  Ombony  v.  Jones,  19  N.  Y.  234 ; 
Holmes  v.  Tremper,  20  Johns.  29. 


§  12.]  FIXTURES.  11 

2.  If,  on  the  expiration  of  his  term,  the  tenant  accepts  a 
new  lease,  containing  no  reservations  of  the  right  of  removal, 
he  thereby  loses  his  right  in  the  fixtures.  But  where  there 
has  been  no  acceptance  of  the  new  lease,  the  tenant  simply 
continuing  in  possession  after  the  expiration  of  his  term, 
he  may  remove  the  fixtures. 

3.  Tenants  for  life  or  at  will,  having  uncertain  interests 
in  the  land,  are  permitted  to  remove  their  fixtures  within  a 
reasonable  time,  after  the  termination  of  their  tenancy 
without  their  own  fault. 

4.  If  the  term  be  forfeited  by  any  act  of  the  lessee,  his 
assignee  or  sub-lessee  has  a  reasonable  time  after  such  ter- 
mination of  the  lease  in  which  to  remove  the  fixtures.*^  On 
the  part  of  the  landlord,  an  action  to  recover  the  chattels 
and  for  damages  for  their  conversion  may  be  maintained. 
It  is  held,  however,  in  certain  cases,  that  so  long  as  the  fix- 
tures constitute  a  part  of  the  realty,  such  action  cannot  be 
maintained.  But  after  severance,  the  owner  of  the  prop- 
erty may  maintain  an  action  in  replevin  or  trover,  as  in 
other  cases  of  personal  property.  The  tenant's  right  to 
bring  such  action  rests  in  the  fact  that  the  fixtures  were 
always  chattels  and  removable  by  him  while  in  possession  of 
the  property.'^ 

^Citations  supra,  under  §§  9  and  10;  Meigs'  appeal,  62  Pa.  St. 
28;  Richard  v.  Borden,  42  Miss.  71;  Eaves  v.  Estes,  10  Kan.  314; 
Holbrook  v.  Chamberlin,  116  Mass.  155;  Blanche  v.  Rogers,  26 
N.  J.  Eq.  563;  Hutchins  v.  Masterson,  46  Tex.  551;  Hederich  v. 
Smith,  103  Ind.  203;  Smith  v.  Park,  31  Minn.  70;  Marks  v.  Ryan, 
63  Cal.  107;  Mclvor  v.  Estabrook,  134  Mass.  550;  Loughran  v. 
Ross,  45  N.  Y.  792;  Darrah  v.  Baird,  101  Pa.  St.  265;  Stansfield 
V.  Portsmouth,  4  C.  B.  (N.  S.)  119,  Talbot  v.  Conger,  151  N.  Y. 
119;  Lewis  v.  Ocean  N.  &  P.  Co.,  125  N.  Y.  350. 

7  Raddin  v.  Arnold,  116  Mass.  270;  Guthrie  v.  Jones,  108  Mass. 
191 ;  Thorn  v.  Sutherland,  123  N.  Y.  236. 


12  EMBLEMENTS.  [§§  13,  14. 


2.  Emblements. 

§  13.  What  are  emblements. — The  term  is  derived  from 
the  Norman  French  word  emhlear,  meaning  to  sow;  and,  in 
legal  terminology,  emblements  are  the  annual  products  of 
the  soil,  to  which  the  tenant  is  entitled  on  the  termination 
of  his  estate,  as  the  result  of  his  own  rightful  care  and 
labor.  While  outgrowths  of  the  soil,  and  hence  in  their  na- 
ture part  of  the  realty,  emblements  are  treated  as  personal 
property.  The  doctrine  of  emblements  is  founded  upon  the 
just  principle  that  a  tenant,  who  cultivates  and  sows  the 
land  with  a  reasonable  expectation  of  reaping  the  harvest, 
ought  to  be  permitted  to  enjoy  the  fruits  of  his  industry.* 

§  14.  What  products  the  tenant  may  remove. — They 
are  the  annual  products  of  the  sowing  or  planting  and  ctd- 
tivation  of  the  tenant,  the  outcome  of  his  own  care  and 
labor.  They  are  characterized  by  the  term  fructus  indus- 
triales,  in  contradistinction  to  fructus  naturales.  As  a  rule, 
only  such  products  of  the  soil  as  are  of  annual  cultivation 
are  regarded  as  emblements;  but  to  this  rule  hops  are  an 
exception,  and  for  the  reason  that,  although  the  product  of 
perennial  roots,  they  require  annual  culture.  Cereals  and 
vegetables  generally  are  included ;  while  products  of  sponta- 
neous growth,  perennial  in  their  nature  and  not  requiring 
annual  cultivation,  such  as  grasses  and  trees,  are  excluded.® 

But,  as  to  what  constitutes  emblements  the  common  law 

8  Web.  Diet.  Unab'gd,  "Emblement;"  And.  L.  Diet.  "Emble- 
ments ;"  Bouv.  L.  Diet.  "Emblements ;"  Tiede.  R.  Prop.  §§  8,  70 ; 
1  Washb.  R.  Prop.  pp.  104,  132-137;  1  Sch.  Pers.  Prop.  pp.  126- 
128;  Williams,  Pers.  Prop.  (4  Ed.),  pp.  17-19,  and  Am.  notes; 
4  Kent.  Com.  p.  7Z\  Tayl.  Land,  and  Ten.  §  534;  Cooley's  Bl.  B. 
II,  p.  123,  and  notes  3,  4. 

"Citations  supra,  under  §  13;  Benj.  Sales,  §§  120-128. 


§  15.]  EMBLEMENTS.  13 

may  be,  and  sometimes  is,  varied  by  local  customs,  and  by 
statutory  enactments.  The  scope  of  this  work  will  not  per- 
mit a  reference  to  such  changes.  They  are  not  numerous, 
and  the  careful  student  and  practitioner  will  here,  as  in  all 
common-law  cases,  examine  the  statutes  and  adjudications 
of  his  own  State. 

§  15.  Who,  and  when,  entitled  to  emblements. — 1.  To 
entitle  one  to  the  crops,  they  must  have  been  sown  and 
planted  by  himself,  and  not  by  another.  Cultivation  and 
care  of  the  crops  will  not  alone  confer  upon  the  claimant 
the  right  of  removal,  where  the  sowing  or  planting  was  done 
by  another.  In  such  case  one  may  not  reap  where  another 
has  sown.^** 

2.  The  right  belongs  only  to  a  tenant  whose  estate  was  of 
uncertain  duration.  Included  in  this  class  are  tenants  for 
life,  and  their  representatives.  Tenants  at  will,  also,  have 
the  right ;  but  not  tenants  for  years,  or  tenants  at  suffer- 
ance. The  distinction  between  certain  and  uncertain  ten- 
ancies is  based  upon  the  doctrine  that  it  is  unwise  for  the 
tenant  to  sow  with  full  knowledge,  or  a  reasonable  proba- 
bility, that  he  cannot  reap,  by  reason  of  the  termination  of 
his  tenancy  before  the  time  of  harvest.^^ 

3.  As  the  reason  of  the  rule  does  not  apply  to  a  case 
where  the  estate  of  the  tenant  has  terminated  unexpectedly, 

lOTiede.  R.  Prop.  §  70;  1  Sch.  Pers.  Prop.  p.  128;  1  Washb.  R. 
Prop.  p.  103 ;  Grantham  v.  Hawley,  Hob.  132 ;  Geev.  Young, 
Hayw.  17;  Price  v.  Pickett,  21  Ala.  741;  Thompson  v.  Thompson, 
6  Munf.  514. 

"Tiede.  R.  Prop.  §§  8,  70,  71;  Tayl.  Land,  and  Ten.  §  534;  2 
Bl.  Com.  pp.  145,  146,  122-124;  4  Kent.  Com.  p.  110;  Co.  Litt.  56; 
Chelsey  v.  Wekh,  37  Me.  106;  Kittredge  v.  Woods,  3  N.  H.  503; 
Whitmarsh  v.  Cutting,  10  Johns.  360;  Graves  v.  Weld,  5  B.  & 
Ad.  105 ;  Kingsbury  v.  Collins,  4  Bingh.  209 ;  Mason  v.  Moyers,  2 
Rob.   (Va.)  606;  Morgan  v.  Morgan,  65  Ga.  495. 


14  EMBLEMENTS.  [§  15. 

and  without  his  fault,  the  rule  does  not  apply.  But  if  the 
estate  terminates  through  the  fault  of  the  tenant,  he  loses 
his  right  to  emblements.^^ 

4.  As  between  the  executor  of  the  tenant  in  fee  and  the 
heir,  the  former  is  entitled  to  the  crops  if  they  are  ripe  for 
harvest.  And  the  right  to  emblements  extends  to  assign- 
ees, and  sub-lessees,  except  when  the  tenant  is  restricted 
from  aliening  the  land.^^ 

5.  When  the  owner  sows  the  land,  and  then  conveys  it 
away,  the  title  to  the  crops  passes  to  the  vendee  by  the  con- 
veyance; and  the  vendor's  executors  and  administrators 
have  no  interest  in  either  land  or  emblements.  So,  also, 
emblements  pass  by  devise  of  the  land,  and  by  the  convey- 
ance of  a  reversion  subject  to  an  existing  particular  estate.^* 

6.  A  mortgagee,  as  against  the  mortgagor  and  his  grant- 
ees, has  the  paramount  right  to  the  emblements.^^  But  a 
foreclosure  after  the  crops  are  severed  carries  no  interest 
in  them  to  the  mortgagee  or  purchaser.^*  It  is  held  by  some 
authorities  that,  if  the  purchaser  under  a  foreclosure  sale 
permit  the  mortgagtor,  or  one  claiming  under  him,  to  retain 
possession  and  plant   crops,  the  latter  will  be  entitled  to 

12  1  Sch.  Pers.  Prop.  pp.  127-129;  2  Kent,  Com.  p.  73;  Tayl. 
Land,  and  Ten.  §  535;  Debow  v.  Colfax,  5  Halst.  411;  Reeder  v. 
Sager,  70  Id.  180. 

13  Tiede.  R.  Prop.  §  71;  Penhallow  v.  Dwight,  7  Mass.  34;  Kings- 
ley  V.  Holbrook,  45  N.  H.  319;  Howe  v.  Batchelder,  49  N.  H. 
319;  Pattison's  Appeal,  61  Pa.  St.  29;  Doe  v.  Mace,  7  Black.  2; 
Tobey  v.  Reed,  9  Conn.  216;  Cooper  v.  Davis,  15  Conn.  556;  Mc- 
Call  V.  Lenox,  9  Serg.  &  R.  302;  Allan  v.  Carpenter,  15  Mich. 
88;  Jones  v.  Thomas,  8  Blackf.  428. 

"1  Sch.  Pers.  Prop.  p.  130;  1  Washb.  R.  Prop.  p.  104;  1  Will- 
iams, Exrs,  p.  674;  Foote  v.  Colvin,  3  Johns.  216;  Burnside  v. 
Weightman,  9  Watts,  46 ;  Cooper  v.  Woolfitt,  2  Hurl.  &  N.  122. 

15  Tayl.  and  Land.  Ten.  §  537;  Tiede.  R.  Prop.  §  71;  Lane  v. 
King,  8  Wend.  584 ;  1  Sch.  Pers.  Prop.  p.  133 ;  1  Washb.  R.  Prop, 
p.  106;  Howell  v.  Schenck,  4  Gabe,  89. 


§  16.]  EMBLEMENTS.  15 

them.^^     But,  on  this  point,  there  does  not  seem  to  be  en- 
tire unanimity  of  judicial  opinion.^^ 

7.  The  doctrine  of  emblements  has  no  application  to  the 
public  lands  of  the  United  States.^^ 

§  16.  Incidents. — 1.  A!s  a  rule,  the  tenant  or  his  repre- 
sentative, when  entitled  to  emblements,  has  a  right  to  enter 
upon  the  land  after  the  termination  of  the  tenancy,  for  the 
purpose  of  taking  necessary  care  of  the  growing  crop,  and 
harvesting  and  removing  it  when  ripe.  But  this  right  is 
limited  to  what  is  reasonably  requisite  for  the  purposes, 
and  must  not  be  abused.^" 

2.  An  agreement  for  a  transfer  of  the  property  in  some- 
thing that  is  attached  to  the  soil,  as  growing  crops,  or  trees, 
but  which  is  to  be  severed  from  the  soil  before  delivery  to 
the  purchaser,  is  a  sale  of  personal  property}^ 

3.  Growing  crops  of  the  species  fructus  industriales  are 
subject  to  levy  and  sale  by  execution  as  personal  property}^ 

16  Sch.  Pers.  Prop.  p.  133 ;  Buckout  v.  Swift,  27  Cal.  438 ;  Codington 
V.  Johnstone,  1  Beav.  520. 

1^  Doe  V.  Mace,  7  Black.  2;  Tobey  v.  Reed,  9  Conn.  216;  Cooper 
V.  Davis,  15  Conn.  556;  McCall  v.  Lenox,  9  Serg.  &  R.  302;  Jones 
V.  Thomas,  8  Blackf.  428. 

IS  Mayo  V.  Fletcher,  14  Pick.  525 ;  Lynde  v.  Rowe,  12  Allen, 
101;  Lane  v.  King,  8  Wend.  584. 

i»  Rogers  v.  Williams,  5  Mo.  335 ;  Rasor  v.  Quails,  4  Blackf. 
286. 

20  Tiede.  R.  Prop.  §  70 ;  1  Sch.  Pers.  Prop.  p.  131 ;  1  Washb.  R. 
Prop.  pp.  105,  136,  137;  1  Williams,  Ex'rs  (6  Ed.),  p.  679;  Co. 
Litt.  56o;  Handson  v.  Porter,  13  Conn.  59;  Forsythe  v.  Price,  8 
Watts,  282;  Humphries  v.  Humphries,  3  Ired.  362. 

2iBenj.  on  Sales  (Ed.  1888),  §  118.  and  Am.  Notes  to  §§  111- 
133. 

^2  Smith's  Sherf .  and  Cons.  pp.  323,  324 ;  Caldwell  v.  Fifield,  24 
N.  J.  L.  150;  Parham  v.  Thompson,  2  J.  J.  Marsh.  (Ky.)  206; 
Craddock  v.  Riddlesbarger,  2  Dana  (Ky.),  206;  Penhallow  v. 
Dwight,  7  Mass.  34;  Hartwell  v.  Bissell,   17  Johns.   128;  Havre  v. 


16  HEIR-LOOMS.  [§  17. 


3.  Heir-looms. 

§  17.  Character  and  law  of,  defined. — Law  writers  and 
philologists  do  not  agree  as  to  the  etymology  of  the  word 
heir-loom.  By  some  it  is  thought  to  be  composed  of  "heir" 
and  "loom,"  the  latter  word  originally  meaning  a  loom  to 
weave  in,  w^hich  descended  to  the  heir;  and  that  the  com- 
posite, by  use  and  accommodation,  has  grown  to  embrace 
many  other  things.  Others  regard  the  termination  loom  as 
of  Saxon  origin,  in  which  language  it  signified  a  limi>  or 
member,  giving  to  heir-loom  the  signification  of  a  limb  or 
member  of  the  inheritance.  Others,  still,  derive  loom  from 
the  Saxon  "loma,"  or  "geloma,"  which  signifies  household, 
stuff,  and  this  with  the  English  word  heir  makes  heir-loom, 
meaning  such  utensils  and  other  things  as  go  to  the  heir.^^ 

The  etymology,  however,  is  of  very  little  practical  im- 
portance. Heir-looms  are  a  species  of  property,  personal 
in  their  nature,  which,  by  force  of  special  custom,  or  be- 
cause they  are  essential  to  the  completeness  and  full  enjoy- 
ment of  the  freehold,  are  treated  as  real  property,  and  de- 
scend to  the  heirs  with  the  inheritance.-* 

In  respect  of  usefulness  to  the  enjoyment  of  the  freehold, 
heir-looms  rest  upon  the  same  basis  of  reason  as  the  class  of 
fixtures  which  are  not  physically  annexed  to  the  soil;  and 
the  fact  that  the  same  things  are,  by  some  text-writers,  as- 
signed to  both  kinds  of  property  indiscriminately,  and  with- 
out explanation,  tends  to  confusion  in  the  minds  of  students. 

Pearson,  4  Lred.  (N.  C.)  L.  76;  Shannon  v.  Jones,  Id.  206;  Sals- 
bury  V.  Parsons,  43  Hun,  12;  Favorite  v.  Deardoff,  84  Ind.  555. 

23  Bouv.  L.  Diet.  "Heir-loom;"  And.  L.  Diet.  "Heir-loom;" 
Webster's  Diet,  (unab'gd),  "Heir-loom;"  1  Sch.  Pers.  Prop.  p. 
117;  2  Blaek.  Com.  p.  428. 

-*Cooley's  Bl.  B.  H,  pp.  427-429,  n.  2;  Williams,  Pers.  Prop, 
pp.  13,  14;  1  Sch.  Pers.  Prop.,  pp.  117-122;  Co.  Litt.  18b. 


§  18.]  MANURE.  17 

As  examples  of  heir-looms  mentioned  in  text-books  are, 
among  other  things,  ancient  jewels  of  the  British  crown; 
the  coat  of  arms  of  an  ancestor  hung  in  the  church,  and  his 
sword  and  insignia  of  rank;  ancient  portraits  and  family 
pictures  in  a  house;  conies  in  a  warren,  and  doves  in  a 
dove-cote;  fish  in  an  artificial  pond;  deeds  and  other  mimi- 
ments  of  title,  together  with  the  chest  or  box  in  which  they 
have  usually  been  kept ;  and  the  keys  of  a  house. 

It  will  be  noticed  that  some  of  these  things  are  also 
classed  with  fixtures  by  text-writers.  They  are  classed  with 
heir-looms  for  the  same  reason  that  they  are  treated  as  fix- 
tures, namely,  on  account  of  their  special  relation  and  im- 
portance to  the  free-hold;  while  those  not  placed  in  both 
classes  are  regarded  as  heir-looms  in  obedience  to  special 
custom.  Among  these  are  some  things  not  essential  to  the 
full  enjoyment  of  the  freehold.^^ 

It  may  be  noticed  in  passing  that  heir-looms  do  not  pass 
by  devise  or  bequest,  separate  from  the  freehold;  and  this 
for  the  reason  that  a  will  does  not  take  effect  till  after  the 
death  of  testator;  whereas  the  realty,  including  everything 
that  goes  with  the  land,  passes  to  the  heir  simultaneously 
with  the  passing  of  the  breath  from  the  body  of  decedent, 
and  vests  instantaneously  in  the  heir,  and  thus  takes  prece- 
dence of  the  devise  or  bequest.^® 

4.  Manure. 

§  18.  When  real,  and  when  personal,  property. — As  a 

general  rule,  in  this  country,  manure  made  upon  the  farm 
by  consumption  of  its  products  is  real  property.  And,  in 
the  interest  of  good  husbandry,  which  requires  that  manure 

25  See  citations  supra,  under  §  17. 

28  1  Sch.  Pers.  Prop.  p.  118;  2  Black.  Com.  p.  429;  Co.  Litt. 
18Sfc;  1  Williams,  Ex'rs  (6  Eng.  Ed.),  681. 


18  CHURCH   FURNITURE.  [§  19. 

made  from  the  products  of  the  land  shall  be  used  to  renew 
and  enrich  the  soil,  the  rule  has  been  established  that,  when 
a  farm  is  leased  for  agricultural  purposes,  the  manure  made 
upon  it  the  last  year  of  the  term  shall  be  left  by  the  out- 
going tenant.  Local  or  neighborhood  custom  may,  however, 
affect  the  question  in  some  cases ;  but  with  no  particular 
agreement  in  such  leases  in  regard  to  manure,  it  belongs 
to  the  farm,  and  not  to  the  tenant.  He  has  no  right  to  re- 
move it,  or  dispose  of  it  to  others,  so  that  it  shall  not  be 
used  on  the  farm.  But,  if  the  manure  be  made  from  prod- 
ucts purchased  elsewhere  and  brought  to  the  land  by  the 
tenant,  as  in  case  of  a  livery  stable,  it  is  personal  property, 
and  belongs  to  the  tenant  with  the  right  of  removal;  and 
is  subject  to  all  the  incidents  of  personal  property.^^ 

It  is  held  in  one  case  that,  manure  left  in  the  streets  be- 
long originally  to  the  owners  of  the  animals  that  dropped 
it,  but  is  to  be  regarded  as  abandoned  property.  Being 
abandoned  property,  the  first  taker  has  a  right  to  appropri- 
ate it ;  and  after  one  has  gathered  it  into  heaps  he  must  be 
regarded  as  entitled  to  it,  against  any  person  having  no 
title,  and  must  be  allowed  a  reasonable  time  to  take  it 
away.    It  cannot  be  regarded  as  real  estate.-^ 

5.  Church  Furniture. 

§  19.  Law  of  this  species  of  property. — As  a  general 
rule,  both  in  England  and  in  this  country,   pews   are   re- 

27Tiede.  R.  Prop.  §  2;  Tayl.  Land,  and  Ten.  §  541;  Bouv.  L. 
Diet.  "Manure;"  Goodrich  v.  Jones,  2  Hill,  142;  Parsons  v.  Camp, 
11  Conn.  525;  Perry  v.  Carr,  44  N.  H.  122;  Fay  v.  Muzzy,  13  Gray, 
53;  Witherby  v.  Ellison,  19  Vt.  379;  Middlebrook  v.  Corwin,  15 
Wend.  169;  Daniels  v.  Pond.  1  Pick.  371;  Lassell  v.  Reed,  6 
Greenl.  222;  Lewis  v.  Jones,  5  Harris,  226;  Snow  v.  Perkins,  60 
N.  H.  493,  49  Am.  Rep.  Zii ;  Plumer  v.  Plumer,  30  N.  H.  558 ;  And. 
L.  Diet.  "Manure." 

-8  Halsen  v.  Lockwood,  Zl  Conn.  500. 


§  19.]  CHURCH    PROPERTY.  19 

garded  as  part  of  the  realty.  But  in  some  of  our  States 
they  are  made  personal  property  by  statute.^^  The  pew- 
holder  has,  as  a  rule,  the  exclusive  right  to  occupy  his  pew; 
and  he  may  maintain  an  action  of  trespass  against  any  one 
who,  without  lawful  authority,  disturbs  him  in  his  seat.^** 
But,  as  against  the  society  or  corporation,  the  interest  of  the 
pew-holder  in  his  pew  is  not  absolute,  but  qualified  and  con- 
ditional. It  is  usufruct  merely,  consisting  in  the  right  of 
occupancy  upon  occasions  of  public  worship.^^  The  right 
of  occupancy  must  yield  to  circumstances  of  necessity  or 
expediency,  growing  out  of  the  rights  in  common  of  the 
society;  and  if  the  trustees,  or  other  authorized  officials, 
make  such  changes  in  the  edifice  as  the  necessities  or  inter- 
ests of  the  society  demand,  and  thereby  destroy  the  owner's 
pew,  he  must  be  content  with  adequate  compensation.^^ 
But,  it  would  seem,  that,  should  the  church  edifice  become 
useless  by  dilapidation  or  other  cause,  and  have  to  be  re- 

29  Cooky's  Bl.  B.  II,  p.  429,  n.  2;  1  Washb.  R.  Prop.  p.  9;  2 
Potter,  Corp.  §  603 ;  Bouv.  L.  Diet.  "Real  Property,"  sub.  6,  and 
"Pews;"  1  Sch.  Pers.  Prop.  pp.  158,  159;  Baptist  Ch.  v.  Bigelow, 
16  Wend.  28 ;  Viele  v.  Osgood,  8  Barb.  130 ;  St.  Paul's  Ch.  v.  Ford, 
34  Barb.  16;  Bates  v.  Soarrell,  10  Mass.  332;  Hodges  v.  Green,  28 
Vt.  358;  And.  L.  Diet.  "Church,"  "Pew." 

30  Gray  v.  Baker,  17  Mass.  435;  Gorton  v.  Hadsell,  9  Cush.  508; 
Shaw  V.  Beveridge,  3  Hill,  26;  O'Hear  v.  Goesbriand,  33  Vt.  593, 
and  citations  last  supra. 

31  Wheaton  v.  Gates,  18  N.  Y.  395 ;  Cooper  v.  Presb.  Ch.,  32  Barb. 
222;  White  v.  Methodist  Epis.  Ch.,  3  Lans.  477;  Abernethy  v.  Ch. 
of  the  Puritans,  3  Daly,  1 ;  Howe  v.  Stevens,  47  Vt.  262 ;  Sohier  v. 
Trinity  Ch.,  109  Mass.  1 ;  Union  Meeting  House  v.  Rowell,  66  Me. 
400;  Gay  v.  Baker,  17  Mass.  435;  Daniel  v.  Wood,  1  Pick.  102; 
Kimball  v.  Rowley,  24  Pick.  347;  Presb.  Ch.  v.  Andrus,  1  Zabr. 
325;  Kincaid's  Appeal,  66  Pa.  St.  411;  Ex  parte  Brick  Presb.  Ch.. 
3  Edw.  Ch.  155. 

32  Wentworth  v.  First  Parish,  3  Pick.  344 ;  Cooper  v.  Presb. 
Ch.,  32  Barb.  222;  Heeney  v.  St.  Peter's  Ch.,  2  Edw.  Ch.  608;  Fas- 
sett  V.  Boylston,  19  Pick.  361 ;  Jones  v.  Towne,  58  N.  H.  462. 


20  MORTUARY  PROPERTY.  [§  20. 

built,  the  right  of  the  pew-holder  to  his  pew,  and  to  com- 
pensation as  well,  would  be  gone.^^ 

Bells,  organs,  furnaces,  stoves  and  pipes,  may,  by  their 
use  or  placing,  become  real  property  or  fixtures.^* 


6.  Mortuary  Property. 

§  20.  Kinds,  legal  rules,  and  burial  rights. — The  grant 
of  a  burial  lot  in  a  churchyard,  or  public  cemetery,  though 
in  terms  a  conveyance  of  the  fee,  is  generally,  an  easement 
merely.  It  will  be  protected  from  disturbance,  and  the 
rights  of  the  owner  for  burial  purposes  secured  to  him, 
while  the  place  continues  to  be  used  as  a  burial  groimd,  but 
the  grant  of  a  burial  lot  in  a  church-yard  will  not  empower 
the  grantee  to  prevent  a  sale  of  the  church  property;  and 
in  all  cases  his  right  must  yield  to  public  necessity.^^ 

Vaults  and  monuments  erected  upon  a  lot  in  a  public 
cemetery,  and  decorations  of  the  grave,  are  the  personal 
property  of  the  holder  of  the  lot,  and  he  may  remove  the 
same  at  his  pleasure."'' 

While  a  corpse,  in  the  strict  sense  of  the  common  law  is 
not  the  subject  of  property,  there  is  in  it  a  quasi  property 
which  confers  upon  the  relatives  of  the  deceased  the  rights 

23  Voorhes  v.  Presb.  Ch.,  17  Barb.  103 ;  Howard  v.  First  Parish, 
7  Pick.  138;  Van  Houten  v.  Reformed  Dutch  Ch.,  2  Green.  (N.  J.) 
126;  Kellogg  v.  Dickinson,  18  Vt.  266;  Gorton  v.  Hadsell,  9  Cush. 
508. 

2*  1  Sch.  Pers.  Prop.  p.  159 ;  Congregational  Society  v.  Fleming, 
11  Iowa,  533;  Rogers  v.  Crow,  40  Miss.  91. 

3s  Richardson  v.  Dutch  Ch.,  32  Barb.  42 ;  Ex  parte  Reformed 
Presb.  Ch.,  7  How.  Pr.  R.  476;  Windt  v.  German  Reformed  Ch.,  4 
Sandf .  Ch.  471 ;  Page  v.  Symonds,  63  N.  H.  17 ;  Buflfalo  City  Cem- 
etery V.  Buffalo,  46  N.  Y.  503. 

36  Patridge  v.  First,  etc.,  Ch.,  39  Md.  631 ;  Kincaid's  Appeal,  66 
Pa.  St.  411;  Snyder  v.  Snyder,  60  How.  Pr.  R.  368. 


§  20,]  MORTUARY  PROPERTY.  21 

of  custody  and  control,  which  the  courts  will  protect.  The 
person  having  charge  of  the  body  holds  it  as  a  sacred  trust 
for  the  benefit  of  all  who  may,  from  family  ties  or  friend- 
ship, have  an  interest  in  it.  This  trust  a  court  of  equity 
will  regulate  and  enforce.^^ 

In  the  absence  of  any  testamentary  directions  on  the  part 
of  the  deceased,  the  right,  and  place,  of  burial  belong  exclu- 
sively to  the  next  of  kin.^^  If,  by  the  term  "next  of  kin," 
as  thus  used,  husband  and  wife  are  to  be  excluded,  it  may 
well  be  doubted  whether  there  should  not  be  a  qualification 
of  the  broadly  stated  doctrine  in  their  favor,^®  in  case  of 
disagreement  among  relatives  in  regard  to  the  burial,  the 
court  will  determine  the  matter  upon  equitable  grounds.*" 

"  Griffith  V.  Charlotte,  etc.,  R.  R.  Co.,  23  S.  C.  25,  55  Am.  Rep. 
1 ;  Guthrie  v.  Weaver,  1  Mo.  App.  136 ;  Pierce  v.  Swan  Pt.  Ceme- 
tery, etc.,  10  R.  I.  227;  Snyder  v.  Snyder,  supra;  Bogert  v.  Indian- 
apolis, 13  Ind.  134. 

38  Law  of  "Burial,"  4  Bradf.  Surr.  R.  503-532;  And.  L.  Diet. 
"Burial;"  Hyler's  Ecc.  Law,  §  971;  Moak's  Eng.  Rep.  vol.  12,  p. 
656;  Wynkoop  v.  Wynkoop,  42  Pa.  St.  293;  Rosseau  v.  City  of 
Troy,  49  How.  Pr.  R.  492. 

■'"'Johnston  v.  Marinus,  18  Abb.  N.  C.  72,  and  Appendix  to 
same,  p.  75 ;  Secor  v.  Secor,  18  Abb.  N.  C.  78  n. ;  Snyder  v.  Sny- 
der, supra. 

*oWeld  V.  Walker,  130  Mass,  422,  39  Am.  R.  465;  Peters  v. 
Peters,  43  N.  J.  Eq.  140;  Snyder  v.  Snyder,  supra. 


22  CHATTELS,   REAL,    AND   PERSONAL.  [§21. 


CHAPTER  IV. 

NOMENCLATURE,   AND    SUBORDINATE   DIVISIONS,    OF 
PERSONAL  PROPERTY. 

§  2L  Chattels,  real,  and  personal. 

22.  Choses  in  possession ;  choses   in  action. 

23.  Estate,  real  and  personal. 

24.  Goods,  wares,  merchandise,  effects,  credits. 

25.  Personal  property  in  expectancy. 


§  21.  Chattels,  real,  and  personal. — The  term  chattel, 
according  to  Blackstone,  is  derived  from  the  technical  Latin 
word  catella,  which  primarily  signified  beasts  of  husbandry, 
cattle;  but  which,  by  accommodation,  has  a  wider  applica- 
tion, including  every  species  of  property  which  is  not  real 
estate,  or  a  freehold. 

It  is  a  fact  of  historic  interest  to  the  student,  that  an- 
ciently property  was  not,  as  at  present,  nominally  divided 
into  real  and  personal,  but  into  lands,  tenements,  and  here- 
ditaments on  the  one  hand,  and  goods  and  chattels  on  the 
other.  This  division  and  nomenclature  was  the  outgrowth 
of  the  feudal  system ;  and  it  will  be  remembered  that,  under 
the  proprietary  rights  and  social  conditions  of  that  system, 
goods  and  chattels  were  regarded  as  constituting  an  in- 
ferior, and  a  comparatively  unimportant,  class  of  property. 

In  the  course  of  time  certain  estates  and  interests  in  land 
grew  up  which  had  no  existence  under  the  ancient  feudal 
system' ;  notably,  leases  for  years.  To  these  the  feudal  rules 
concerning  the  realty  did  not  apply;  and,  moreover,  being 
regarded  as  inferior  in  character  and  value  to  lands  held 
under  the  feudal  tenure,  they  were  assigned  to  the  rank  and 


§  22.]  CHOSES  IN    POSSESSION,    ETC.  23 

class  of  goods  and  chattels.  But,  as  leases  for  years,  and 
other  interests  of  a  like  nature,  are  in  fact  interests  in  land, 
they  are  denominated  chattels  real,  to  distinguish  them 
from  property  personal  in  its  nature,  all  species  of  which 
are  embraced  in  the  term  chattels  personal. 

Chattels  real,  then,  may  be  defined  briefly  as  such  inter- 
ests as  are  annexed  to,  or  concern,  real  estate;  chattels  per- 
sonal, such  things  as  are  movable,  annexed  to  or  attend  the 
person  of  the  owner.  It  will  be  seen  that  the  present  gen- 
eral division  of  property  is  into  real,  and  personal;  and 
that  the  term  chattel  is  equivalent  to  the  term  personal 
property,  including  every  species  of  property  not  embraced 
in  the  division  termed  indifferently  real  property,  or  real 
estate.^ 

§  22.  Choses  in  possession ;  choses  in  action. — The  word 
"chose,"  which  is  a  contribution  from  the  French,  means 
a  thing;  and  in  our  law  it  is  applied  to  personal  property. 
According  to  Blackstone,  a  chose  or  thing  in  possession 
"subsists  there  only,  where  a  man  hath  both  the  right,  and 
also  the  occupation,  of  the  thing ;"  while  a  chose  or  thing  in 
action,  is  "where  a  man  hath  not  the  occupation,  but  merely 
a  bare  right  to  occupy  the  thing  in  question ;  the  possession 
whereof  may  however  be  recovered  by  a  suit  or  action  at 
law ;  from  whence  the  thing  so  recoverable  is  called  a  thing 
or  chose  in  action," 

Mr.  Schouler,  in  his  learned  treatise  on  personal  property, 
suggests  that  these  terms  are  calculated  to  mislead;  that 
"they  do  not  intend  just  what  they  appear  to  express;" 
and  that  Blackstone  "confounds  two  senses  of  the  word 
'property,'  the  one  signifying  the  thing  possessed,  the  other 

1 2  Black.  Com.  p.  385 ;  2  Kent,  Com.  p.  341 ;  1  Sch.  Pers.  Prop, 
pp.  29,  45;  Williams'  Pers.  Prop.  p.  2;  Bouv.  L.  Diet.  "Chattels." 


24  ESTATE,  REAL,  AND  PERSONAL.  [§23. 

the  right  of  possession."  He  thinks  a  general  division  of 
property  into  things  corporeal  and  things  incorporeal  would 
be  preferable  to  the  ordinary  classification  of  the  common 
law.  However  this  may  be,  the  classification  generally 
adopted,  and  thoroughly  incorporated  into  the  law  of  per- 
sonal property,  is  sufficiently  accurate  for  the  purpose,  and 
quite  consonant  with  the  plan  of  this  work,  which  is  to  pre- 
sent a  clear  and  succinct  statement  of  the  law  as  generally 
laid  down  by  text  writers,  and  recognized  by  the  courts. 

Adopting,  then,  the  ordinary  divisions  and  nomenclature, 
choses  in  possession  are  things  in  which  the  right  of  prop- 
erty, and  the  occupancy,  unite  in  the  same  person;  while 
choses  in  action  are  things  in  which  a  person  has  the  right 
of  property,  but  not  the  occupancy,  possession  being  recov- 
erable by  an  action  at  law;  hence  the  significance  of  the 
designation,  choses  in  action. 

The  latter  division  covers  a  broad  field,  including  a  great 
variety  of  subjects  of  personal  property.  "It  embraces," 
says  Chancellor  Kent,  "the  most  diffuse,  and  in  this  com- 
mercial age,  the  most  useful  learning  of  the  law.  By  far 
the  greater  part  of  the  questions  arising  in  the  intercoiurse 
of  social  life,  or  which  are  litigated  in  the  courts  of  justice, 
are  to  be  referred  to  this  head  of  personal  rights."^ 

§  23.  Estate,  real  and  personal. — The  term  "estate," 
— in  Latin  status, — is  derived  from  stare,  to  stand,  meaning 
the  fixed  condition  of  anything  or  person.  Applied  to  law, 
it  signifies  the  condition  or  circumstances  in  which  the 
owner  stands  in  relation  to  his  property.     The  term  "es- 


2  1  Black.  Com.  p.  397;  2  Kent,  Com.  p.  351;  1  Sch.  Pers.  Prop, 
pp.  32-40,  76,  86;  Bouv.  L.  Diet.  "Choses  in  Action;"  Williams' 
Pers.  Prop.  pp.  4-7,  63 ;  Pom.  Mun.  Law,  §§  779-781. 


§23.]  ESTATE,    REAL,    AND    PERSONAI,.  25 

tate"  is  property  applicable  only  to  real  property.  It  is 
indigenous  to  the  feudal  system,  under  which  absolute  own- 
ership is  unknown,  an  estate  being  all  that  can  be  held  or 
enjoyed  by  the  tenant. 

By  the  English  common  law,  all  lands  were  held,  either 
mediately  or  immediately  of  the  crown,  the  king  being 
called  lord  paramount.  This  is,  in  brief  the  feudal  tenure, 
by  which  all  lands  in  England  are  held;  but  which,  with 
few  exceptions,  does  not  exist  in  the  United  States.  True, 
it  is  maintained  by  jurists  of  repute,  that  there  cannot  be 
an  absolute  ownership  of  lands  in  any  system  of  jurispru- 
dence, and  that  in  this  country  the  ultimate  absolute  owner- 
ship vests  in  the  state.  On  the  other  hand,  it  is  insisted  by 
high  authority  that,  while  in  the  United  States  lands  pass 
to  the  state  in  case  of  forfeiture  and  escheat,  this  does  not 
constitute  the  feudal  relation  proper,  but  results  from  the 
attribute  of  sovereignty  in  the  body  politic. 

In  this  country,  generally,  lands  are  allodial,  not  feudal 
in  character  or  tenure. 

The  distinction  between  the  two  systems  is,  in  brief,  this : 
under  the  feudal  tenure,  the  absolute  ownership  of  land, 
the  dcPminiwm  directum,  is  in  one  man,  while  the  actual 
possession  and  profitable  use,  the  dominium  utile,  is  in  an- 
other; whereas,  under  the  allodial  system  the  ownership 
and  use,  the  dominium  directum  and  the  dominium  utile, 
unite  in  the  same  person. 

While,  however,  the  term  "estate,"  in  its  original  and 
proper  use,  applies  only  to  real  property,  it  is  frequently 
employed  to  designate  personal  property.  Especially  is 
this  true  in  testimentary  instruments  and  law,  and  in  bank- 
rupt and  insolvent  law.  "All  my  estate,  real  and  per- 
sonal," is  a  phrase  often  found  in  wills,  and  sometimes  in 


26  ESTATE,  GOODS,   WARES,  ETC.  [§24. 

Other  written  instruments.  The  term  "estate"  alone  is 
sometimes  used  to  cover  both  real  and  personal  property; 
and  sometimes  to  cover  real,  or  personal,  property  only ;  de- 
pending in  each  case  upon  intention,  which  must  be  sought 
by  the  rules  of  interpretation  and  construction. 

As,  under  the  feudal  system,  estates  or  interests  in  land 
may  be  absolute  or  qualified,  so  when  the  term  "estate"  is 
applied  to  personal  property,  it  may  represent  an  absolute, 
or  a  qualified  interest.^ 

§  24.  Goods,  wares,  merchandise,  effects,  credits. — The 

word  "goods"  applies  to  personal  property,  and  when  not 
joined  to  other  substantives,  is  generally  held  to  be  more 
limited  in  its  scope  than  the  word  "chattels,"  embracing 
inanimate  objects  only.  It  should  be  noticed,  however,  that 
in  wills  it  may  embrace  all  the  personal  property  of  the 
testator,  animate  and  inanimate,  corporeal  or  incorporeal, 
depending  for  scope  and  significance  in  every  case  upon  the 
context  and  construction  of  the  instrument. 

The  terms  "wares"  and  "merchandise,"  when  standing 
by  themselves,  require  no  explanation.  In  the  English 
Statute  of  Frauds  the  phrase  "goods,  wares,  and  merchan- 
dises" is  employed,  and  like  words  are  found  in  our  Amer- 
ican statutes.  As  thus  employed,  these  terms  have  been 
under  judicial  consideration,  both  in  England  and  in  this 
country,  and  the  results  shows  some  contrariety  of  judicial 
interpretation.  While  generally  held  to  be  very  compre- 
hensive  in   their   scope,   embracing   all   corporeal   movable 


3  Bouv.  L.  Diet.  "Estate,"  "Allodium;"  Williams'  Pers.  Prop, 
pp.  7,  8,  206,  259 ;  Pom.  Mun.  Law,  §§  378-385,  434,  435,  842,  843 ; 
Tiede,  Real  Prop.  §§  19,  25;  3  Kent,  Com.  pp.  513.  514;  Goodeve, 
Pers.  Prop.  p.  3 ;  Dayt.  Surr.  p.  232 ;  Van  Rensselaer  v.  Dennison, 
35  N.  Y.  393. 


§  25.]  IN  EXPECTANCY.  27 

property,  these  terms,  it  is  held  by  some  courts,  do  not 
embrace  all  kinds  of  personal  property.  The  prevailing 
doctrine  of  the  English  authorities  is,  that  these  words  com- 
prehend only  corporeal  movable  property,  while  the  Amer- 
ican authorities  generally  adopt  a  more  liberal  construction, 
including  incorporeal  property,  choses  in  action,  as  well. 
But  the  courts  in  our  States  are  not  in  full  accord  in  re- 
gard to  the  interpretation  of  this  statutory  phrase. 

The  term  "effects"  is  often  used  to  designate  personal 
property,  and  generally  has  a  broader  signification  than 
the  term  "goods."  In  a  will  it  may  carry  the  whole  of  a 
testator's  personal  estate,  depending  upon  intention  as  de- 
termined by  judicial  construction. 
^  The  word  "credits"  applies  to  debts  due,  money  demands 
and  to  all  choses  in  action.* 

§  25.  Personal  property  in  expectancy. — Contrary  to 
the  ancient  common-law  doctrine,  it  is  now  well  established 
that  there  may  be  an  interest  in  expectancy  in  personal 
property.  That  is  to  say,  one  person  may  have  the  right 
of  possession  and  the  usufruct  for  a  term  of  years  or  for 
life,  while  another  at  the  same  time  has  a  reversion  or 
remainder  in  the  same  property. 

It  should  be  noticed,  however,  that  the  rule  against  per- 
petuities is  made  applicable  to  personal  property.  The  sub- 
ject is  regulated  by  statute  in  some  of  our  States.  For 
instance.  New  York  has  the  following  provision :  "The  abso- 
lute ownership  of  personal  property  shall  not  be  suspended 
by  any  limitation  or  condition  whatever,  for  a  longer  period 

•*  Bouv.  L.  Diet.  "Goods,"  "Merchandise,"  "Efifects,"  "Credits ;" 
1  Sch.  Pers.  Prop.  pp.  39,  40,  86,  87;  Benj.  on  Sales,  pp.  105,  118; 
Am.  Notes,  §§  111-133;  Bishop,  Con.  (2nd  Enl.  Ed.)  §  1315;  2 
Pars.  Con.    (7  Ed.)   pp.  49-51. 


28  IN  EXPECTANCY.  [§  25. 

than  during  the  continuance  and  until  the  termination  of 
not  more  than  two  lives  in  being  at  the  date  of  the  instru- 
ment containing  such  limitation  or  condition;  or  if  such 
instrument  be  a  will,  for  not  more  than  two  lives  in  being 
at  the  death  of  the  testator."  ^ 

5Sch.  1  Pers.  Prop.  pp.  161-185;  Williams'  Pers.  Prop.  pp.  260- 
262,  and  n.  1 ;  2  Kent.  Com.  pp.  352-354 ;  Gen.  Laws  and  Rev. 
Stat.   (Heydecker's)  p.  3900;  N.  Y.  Pers.  Prop.  Law,  art.  I,  sec.  2. 


§  26.]  JOINT  OWNERS.  29 


CHAPTER  V. 
PERSONAL  PROPERTY,  HOW  HELD  OR  OWNED. 

§  26.  Joint  owners. 

27.  Ownership  in  common. 

28.  Part-owners  of  ships. 

29.  Partners. 

30.  Corporations. 

3L  Joint-stock  companies. 

§  26.  Joint  owners. — Ownership  in  severalty  requires 
no  discussion,  the  expression  itself  being  plainly  significant, 
and  fully  characteristic.  Joint  ownership  is  more  compli- 
cated in  its  nature.  It  exists  where  two  or  more  are  joined 
in  the  ownership  of  the  same  property  by  four  unities, 
namely,  title,  time,  interest,  and  possession.  Unity  of  title 
signifies  that  the  title  of  all  the  joint  owners  accrued  under 
one  and  the  same  instrument,  or  was  created  by  the  same 
act  on  the  part  of  the  vendor  or  donor.  Unity  of  time  re- 
quires that  the  interest  of  each  should  have  vested  at  the 
same  moment.  Unity  of  interest  implies  that  the  interest 
of  each  in  the  property  is  the  same  in  quantity,  and  for  the 
same  duration.  Unity  of  possession  means  that  each  of  the 
owners  has  an  undivided  possession  each  entire  part,  and 
also  of  the  whole.  In  ancient  technical  expression,  each  is 
possessed  "per  my  et  per  tout."  But  as  to  unity  of  time, 
the  case  of  joint  ownership  created  by  will  is  an  exception. 

To  the  relationship  of  joint  ownership,  thus  created,  cer- 
tain important  rules  appertain,  which  must  not  be  over- 
looked. 

First.  The  right  of  survivorship,  the  jus  accrescendi. 
That  is,  in  case  of  the  death  of  one  joint  owner,  the  survivor, 


30  JOINT  OWNERS.  [§  26. 

or  survivors  will  take  the  entire  interest  in  the  property, 
unaffected  by  any  disposition  the  deceased  joint  owner  may 
have  made  by  his  will,  if  there  had  been  no  severance  of 
the  joint  ownership  in  the  lifetime  of  the  parties. 

To  the  right  of  survivorship,  however,  an  exception  has 
been  made  in  favor  of  trade  and  agriculture,  in  cases  of 
partnership  and  joint  undertaking  in  these  branches  of 
commerce  and  industr}-,  in  which  cases  the  interest  of  a  de- 
ceased joint  owner  vests  in  his  executors  or  administrators. 

The  operation  of  survivorship  in  diverting  the  interest  of 
a  deceased  owner  from  his  next  of  kin,  to  whom  it  naturally 
belongs,  is  generally  regarded  as  unreasonable  and  unjust, 
and  hence  is  not  favored  by  courts  or  legislators.  Numer- 
ous statutes  have  been  passed  providing  in  effect,  that  where 
property  is  given  or  sold,  granted  or  devised,  to  two  or 
more  persons  without  words  expressly,  or  by  necessary  im- 
plication, creating  a  joint  tenancy  or  ownership,  it  shall  be 
held  to  constitute  a  tenancy  or  ownership  in  common,  rather 
than  a  joint  tenancy  or  ownership.  And,  in  the  absence  of 
legislation  on  the  subject,  courts  generally  incline  to  a  con- 
struction of  instruments  that  will  establish  a  tenancy  or 
ownership  in  common,  in  preference  to  a  joint  tenancy  or 
ownership. 

But  the  doctrine  of  survivorship  is  well  adapted  to  execu- 
tors, administrators,  trustees,  and  others  acting  in  a  fiduci- 
ary capacity,  who  have  the  legal  title,  but  no  equitable  in- 
terest in  the  property.  Hence  they  are  generally  held  and 
treated  as  joint  owners. 

Second.  As  between  themselves,  each  of  the  joint  owners 
is  entitled  to  an  equal  share  of  the  rents,  income,  and  prof- 
its, during  his  life;  and,  as  a  logical  result  of  this  rule,  if 
one  receives  more  than  his  share,  the  others  have  an  action 
against  him  to  recover  the  excess. 


§27.]  OWNERSHIP  IN   COMMON.  31 

Third.  From  the  unity  of  possession,  each  owner  having 
an  undivided  possession  of  each  part  as  well  as  of  the  whole, 
it  follows  that  the  possession  of  one  is  the  possession  of  all. 
Hence  the  rule,  that  one  cannot  maintain  an  action  against 
his  co-owner  for  the  possession;  but  in  case  of  a  wrongful 
conversion  of  the  property  by  one,  the  others  may  main- 
tain an  action  against  him  for  damages. 

Fourth.  Joint  ownership  in  personal  property  may  be 
severed  by  agreement  of  the  parties,  by  act  of  one  in 
disposing  of  his  interest,  by  a  decree  of  a  court  of  equity, 
and,  as  some  authorities  hold,  by  levy  and  sale  of  the  in- 
terest of  one  under  an  execution ;  but  as  to  the  latter  mode 
of  severance  there  might,  in  some  cases,  be  serious  practical 
difficulty  as  each  joint  owner  is  entitled  to  the  possession  of 
the  whole  property.  In  case  of  more  than  two  joint  owners 
of  the  same  property,  if  the  interest  of  one  pass  to  a  third 
party,  the  latter  will  become  an  owner  in  common,  to  the 
extent  of  such  interest,  with  the  remaining  joint  owners, 
who  will  continue  joint  owners  as  between  themselves.^ 

§  27.  Ownership  in  common. — In  analogy  to  a  tenancy 
in  common  of  real  estate,  ownership  of  personal  property 
is  constituted  by  one  unity,  that  of  possession.  Some  or  all 
the  other  unities  essential  to  joint  ownership,  title,  time. 


1  Williams'  Pers.  Prop.  pp.  302-306;  1  Sch.  Pers.  Prop.  pp.  186- 
193,  195;  2  Bl.  Com.  p.  399;  2  Kent,  Com.  p.  351;  4  Id.  pp.  363, 
364;  Davis  v.  Lottich,  46  N.  Y.  393;  Van  Doren  v.  Baity,  11  Hun, 
239 ;  Anderson  v.  Schulze,  64  Wis.  460 ;  Gates  v.  Fraser,  9  111. 
App.  624;  Taylor  v.  Cox,  2  B.  Men.  (Ky.)  429;  Southworth  v. 
Smith,  27  Conn.  355 ;  Terrell  v.  Martin,  64  Tex.  121 ;  Franklin 
Sav.  Inst.  V.  People's  Sav.  Bank,  14  R.  I.  632;  Waldman  v. 
Broder,  10  Cal.  378;  Buck  v.  Spofford,  31  Me.  34;  Brinley  v. 
Kupper,  6  Pick.  179;  Stone  v.  Aldrich,  43  N.  H.  52;  Postell  v. 
Skirling,  Desaus.  (S.  C.)  Eq.  158;  Mills  v.  Husson,  140  N.  Y.  99; 
Matter  of  Kimberly,  150  N.  Y.  90. 


32  OWNERSHIP  IN   COMMON.  [§  27. 


and  interest,  may  be  wanting;  yet,  if  the  several  parties  in 
interest  have  a  united  possession  they  are  owners  in  com- 
mon, or,  as  the  relation  is  generally  expressed,  tenants  in 
common.  The  titles  of  the  respective  owners  may  have 
come  from  different  sources,  and  have  vested  at  different 
times,  and  their  interests  may  be  unequal,  still,  if  united  in 
possession,  they  will  be  tenants  in  common;  but,  in  the  ab- 
sence of  this  unity,  whatever  else  their  relations  or  interests 
may  be,  they  will  not  be  owners  in  common,  for  unity  of 
possession  is  absolutely  essential  to  this  kind  of  ownership. 
The  owners  are  interested,  in  legal  technics,  "per  tout,  et 
non  per  my,"  each  in  contemplation  of  law,  having  a  sepa- 
rate ownership  in  the  whole  of  his  own  share  whatever  it 
may  be,  and  not,  as  in  joint  tenancy,  an  vmdivided  interest 
in  each  part  as  well  as  in  the  whole.  The  unity  of  posses- 
sion consists  in  a  combination  of  the  respective  units  of  the 
several  owners,  the  share  of  each  measuring  his  interest  in 
the  common  property. 

As  a  general  rule,  joint  owners  or  owners  in  common 
should  join  in  actions  for  trover  or  trespass  for  conversion, 
or  injuries  received  from  a  third  person.^ 

The  doctrine  of  survivorship  does  not  apply  to  ownership 
in  common,  but  on  the  death  of  one  his  interest  passes  to 
his  executors  or  administrators.^ 

The  principle  incidents  of  ownership  in  common  are: 

First.  The  possession  of  one  is  the  possession  of  all,  and 
all  are  equally  entitled  to  possession.* 


2  May  V.  Parker,  12  Pick.  34 ;  White  v.  Brooks,  43  N.  H.  402. 

"1  Sch.  Pers.  Prop.  p.  193  et  seq.;  Williams'  Pers.  Prop.  p.  306; 
Beaumont  v.  Crane,  14  Mass.  400;  Knox  v.  Campbell,  1  Pa.  St. 
366 :  Welch  v.  Sackett,  12  Wis.  243 ;  Blessing  v.  House.  3  Gill.  &  J. 
290;  Brown  v.  Graham,  24  111.  628;  Bernecker  v.  Miller,  40  Mo. 
473. 


§27.]  OWNERSHIP  IN   COMMON,  33 

Second.  One  cannot  maintain  an  action  against  his  co- 
tenant  to  recover  possession  of  the  common  property;  but 
he  may  have  an  action  of  tort  against  him  for  its  conversion 
or  destruction.  A  use  of  property  which  amounts  to  de- 
struction or  spoHation  constitutes  conversion  and  will  au- 
thorize an  action  by  those  injured.^ 

Third.  The  interest  of  one  is  subject  to  levy  and  sale  by 
execution  for  his  debts ;  but  if  the  officer  sell  the  whole  prop- 
erty, and  not  merely  the  interest  of  the  judgment  debtor, 
he  will  be  liable  to  an  action  by  the  other  co-owner  for  his 
imdivided  interest. 

Fourth.  One  owner  in  common  of  chattels  may  recover 
from  another  any  money  properly  expended  on  it  beyond 
his  due  proportion ;  but  there  must  have  been  a  previous  re- 
quest to  join  in  making  the  necessary  repairs,  unless  there 
exist  some  agreement  or  prescription  binding  either  party 
exclusively  to  make  repairs.^ 

Fifth.  Where  personal  property  in  common  bulk  and  of 
the  same  quality,  severable  in  its  nature,  is  owned  by  two  or 
more  persons  in  common,  each  may  sever  and  appropriate 
his  share  if  it  can  be  determined  by  measurement  or  weight, 
without  the  consent  of  the  others,  and  without  liability  to 
an  action  for  the  conversion  of  the  common  property. '^ 

*  References  last  supra;  Williams  v.  Watkins,  3  Pet.  51 ;  Strong 
V.  Colter,  13  Minn.  82;  Southworth  v.  Smith,  27  Conn.  355;  Har- 
vey V.  Cherry,  76  N.  Y.  436 ;  Meeker  v.  Wright,  76  N.  Y.  262. 

5  Dain  v.  Cowing,  22  Me.  347 ;  Leonard  v.  Scarborough,  2  Ga. 
72, ;  Weld  v.  Oliver,  21  Pick.  559 ;  White  v.  Brooks,  43  N.  H.  402 ; 
Hyde  v.  Stone,  9  Cow.  230;  Potter  v.  Neal,  62  How.  Pr.  R.  158; 
Agnew  V.  Johnson,  17  Pa.  St.  27 Z;  Needham  v.  Hill,  127  Mass. 
133;  Davis  v.  Lottich,  46  N.  Y.  393. 

8  Loring  v.  Bacon,  4  Mass.  575 ;  Carter  v.  Miller,  Id.  559 ;  Con- 
verse v.  Ferre,  11  Mass.  325;  Doane  v.  Badger,  12  Id.  65;  Gard- 
ner v.  Cleveland,  9  Pick.  334;  Peytos  v.  Smith,  Dev.  &  B.  (N.  C.) 
L.  325. 

T  Forbes  v.  Shattuck,  22  Barb.  568;  Tripp  v.  Riley,  15  Id.  Z2,Z; 
Channon  v.  Lusk,  2  Lans.  211;  Stall  v.  Wilbur,  77  N.  Y.  158. 


34  PART  OWNER  OF  SHIPS.  [§  28. 

Sixth.  Owners  in  common  of  personal  property  may- 
maintain  a  suit  in  equity  for  partition ;  and  in  case  a  divi- 
sion be  impracticable,  they  may  have  a  decree  for  the  sale 
of  the  common  property,  and  a  division  of  the  proceeds. 
But  they  are  not  entitled  to  compensation  from  each  other, 
for  services  rendered  in  the  care  of  the  common  property, 
in  the  absence  of  an  agreement  to  that  effect.^ 

§  28,  Part-owners  of  ships. — A  ship  is  a  personal  chat- 
tel; and  when  owned  by  two  or  more  parties,  they  hold  a 
peculiar  relation  to  each  other  in  respect  of  the  joint  prop- 
erty, characterized  in  the  law  as  "part-owners."  They  are 
not  classed  with  joint  owners,  tenants  in  common,  or  as 
partners.  Generally,  however,  they  are  owners  in  common 
of  the  ship,  and  partners  in  the  maritime  enterprises  in 
which  the  vessel  is  engaged. 

But  they  may  be,  and  sometimes  are,  partners  in  the  ship 
as  well.  Partners  may  own  a  ship  as  partnership  property ; 
and  persons  not  general  partners  may,  by  agreement,  be- 
come owners  as  partners  of  a  particular  ship.  In  the  ab- 
sence of  these  conditions,  they  are  not  regarded  in  law  as 
either  partners,  or,  technically,  tenants  in  common,  but 
part-owners. 

In  respect  to  third  parties,  the  several  part-owners  of  a 
ship  are  but  one  owner ;  and  hence  in  actions  of  contract  by 
and  against  them,  all  should  be  joined.  But  if  torts  be  com- 
mitted by  several,  an  action  for  damages  may  be  maintained 

^  Godfrey  v.  White,  60  Mich.  443 ;  Tripp  v.  Riley,  supra,  333, 
336;  Tiney  v.  Stebbins,  28  Barb.  290;  Wetmore  v.  Zabriskie,  29 
N.  J.  Eq.  62;  Crapster  v.  Griffith,  2  Bland,  525;  Smith  v.  Smith, 
4  Rand,  95 ;  Kerley  v.  Clay,  4  Bibb,  241 ;  Marshall  v.  Crow's 
Adm'r,  29  Ala.  278 ;  Conover  v.  Earl,  26  Iowa,  167 ;  3  Pom.  Eq. 
§  1391 ;  Franklin  v.  Robinson,  1  Johns.  Ch.  157 ;  Harvey  v.  Har- 
vey, 127  Ind.  91 ;  Barney  v.  Leeds,  54  N.  H.  128. 


§29.]  PARTNERS.  35 

against  a  part  or  all  of  them,  at  the  pleasure  of  the  injured 
party.^ 

§  29.  Partners. — Chancellor  Kent  defines  partnership 
thus:  "Partnership  is  a  contract  of  two  or  more  competent 
persons,  to  place  their  money,  effects,  labor  and  skill,  or 
some,  or  all  of  them,  in  lawful  commerce  or  business,  and  to 
divide  the  profit,  and  bear  the  loss,  in  certain  proportions." 
Other  definitions  by  approved  authors,  differing  somewhat 
in  expression,  are  substantially  the  same  in  effect. 

Whether  a  partnership  exists  is  a  question  of  fact;  what 
constitutes  a  partnership  is  a  question  of  law.^*^ 

The  leading  characteristics,  and  ordinary  features,  of  a 
partnership  are,  a  community  of  interest  for  business  pur- 
poses in  the  stock  and  profit  of  the  firm,  and  a  sharing  of 
profit  and  loss.  While  community  of  interest  in  the  stock 
or  profit  is  essential  to  a  partnership,  community  in  the 
property  does  not,  in  itself,  constitute  a  partnership;  for 
such  a  community  exists  in  other  relations,  as,  for  example, 
in  joint  and  common  ownership.  And  there  may  be  a  shar- 
ing in  the  profits  of  a  business  as  a  compensation  for  serv- 
ices rendered  by  a  person  who  is  not  a  partner;  the  ascer- 
tained profit  of  the  firm  being  a  fund  from  which  such  com- 
pensation is  derived,  and  his  share  the  measure  of  the  same. 

There  are  other  qualifications  and  rules  touching  the  cre- 
ation and  test  of  a  partnership,  but  their  discussion  in  this 

^3  Kent,  Com.  p.  152,  et  scq.;  1  Sch.  Pers.  Prop.  p.  250,  et  seq.; 
Abb.  Ship.  (Ed.  1854),  pp.  1,  et  seq.  and  127  et  seq.;  Bishop,  Non- 
Con.  L.  §§  927,  928;  Mumford  v.  Nicholl,  20  Johns.  611;  Merrill 
V.  Bartlett,  6  Pick.  46;  Holderness  v.  Shackels,  8  B.  &  C.  612; 
Rex  V.  Collector,  2  M.  &  S.  223;  Bulkeley  v.  Barker,  6  Ex.  164; 
Robertson  v.  Smith,  18  Johns,  459;  Bower  v.  Stoddard,  10  Met. 
375. 

103  Kent,  Com.  p.  24;  Bates,  Part.  §  1;  1  Sch.  Pers.  Prop.  p. 
205. 


36  PARTNERS.  [§  29. 

connection  is  forbidden  by  the  limitations  of  the  plan  and 
scope  of  the  work  in  hand ;  the  purpose  here  being  to  briefly 
explain  the  ownership  of  personal  property  by  partners.^^ 

Partners  are  joint  tenants  or  owners  of  their  stock  in 
trade  and  effects,  but  without  the  right  of  survivorship; 
and  on  a  dissolution  of  the  partnership  they  become  tenants 
in  common  of  the  partnership  property. 

The  death  of  one  partner  is,  ipso  facto,  a  dissolution  of 
the  partnership;  and  thereupon  his  interest  in  the  concern 
passes  to  his  personal  representatives,  who  become  tenants 
or  owners  in  common  with  the  survivors.  It  should  be 
added,  however,  that  on  the  death  of  one,  the  survivors  have 
the  exclusive  right  to  the  possession  of  the  partnership 
property,  and  the  management  of  the  business,  for  the  pur- 
pose of  closing  up  the  same,  paying  the  firm  debts,  and  ad- 
justing the  equities  between  themselves  and  the  deceased 
partner.  The  survivors  become  the  trustees  of  the  prop- 
erty, and  in  its  administration  are  subject  to  the  rules 
applicable  to  that  class  of  fiduciaries.  The  interest  of  the 
deceased  partner  will  be  the  residue  of  his  share  after  pay- 
ment of  partnership  debts,  and  adjustment  of  the  equities. 

The  representatives  of  a  deceased  partner  cannot  be  held 
for  a  partnership  debt  until  the  remedy  against  the  surviv- 
ing partners  is  exhausted  or  shown  valueless.^^ 

Real  estate,  bought  with  partnership  funds,  and  used  for 
partnership  purposes,  is  treated  in  equity  as  personal  prop- 
erty, and  is  subject  to  the  same  rules  as  other  personal  assets 

11  Bates,  Part.  §§  15-71;  1  Sch.  Pers.  Prop.  p.  210;  Mason  v. 
Racket  v.  Nev.  420;  Atherton  v.  Tilton,  44  N.  H.  452;  Buckle  v. 
Eckhart,  3  N.  Y.  132;  Leggett  v.  Hyde,  58  Id.  272;  Hanna  v. 
Flint,  14  Cal.  73;  Parker  v.  Fergus,  43  111.  437. 

12  Bates,  Part.  §  580;  1  Sch.  Pers.  Prop.  p.  225 ;  3  Kent,  Com. 
p.  37;  Voorhis  v.  Childs'  Ex'r,  N.  Y.  354;  Pope  v.  Cole,  55 
N.  Y.  124. 


§  29.]  PARTNERS.  37 

of  the  firm.  But,  after  paying  partnership  debts  and  ad- 
justing the  equities  between  the  partners,  what  becomes  of 
the  residue,  if  any?  Does  it  retain  the  impress  of  person- 
alty, and  pass  to  the  executors  and  administrators  for  the 
benefit  of  the  next  of  kin,  or  does  it  resume  its  original  and 
intrinsic  character  as  real  estate,  and  descend  to  heirs? 
The  authorities  disclose  a  disagreement  between  the  Eng- 
lish and  American  doctrine  on  this  point;  the  former  hold- 
ing that  when  once  converted  into  personalty  for  partner- 
ship purposes,  it  so  remains  and  passes  to  personal  repre- 
sentatives for  the  benefit  of  the  next  of  kin;  while,  by  the 
weight  of  authority,  in  this  country,  it  resumes  its  true 
character  of  real  estate,  and  descends  to  heirs.^^ 

Each  partner  is  the  agent  of  all,  and  has  full  authority 
to  bind  the  others  by  his  acts  and  contracts  relating  to  the 
business  of  the  firm.  He  may  sell,  assign,  and  transfer 
partnership  property  in  the  regular  business  of  the  partner- 
ship, and  for  the  payment  of  the  firm  debts.  But  in  regard 
to  the  authority  of  one  partner  to  make  a  general  assign- 
ment of  all  the  partnership  property  for  the  benefit  of  cred- 
itors, without  the  knowledge  or  consent  of  his  co-partners, 
there  is  some  difference  of  judicial  opinion.  The  weight, 
however,  seems  to  be  against  such  authority,  especially 
where  preferences  are  made.^* 

The  interest  of  each  partner  in  the  tangible  partnership 

13  Pars.  Part.  pp.  369-372 ;  Essex  v.  Essex,  20  Beav.  442 ;  Derby 
V.  Derby,  3  Drew.  495;  Ripley  v.  Waterworth,  7  Ves.  425;  Bon- 
ner V.  Campbell,  48  Pa.  St.  286;  Brewer  v.  Browne,  68  Ala.  210; 
Shanks  v.  Klein,  104  U.  S.  18;  Rice  v.  Barnard,  20  Vt.  479;  Bu- 
chan  V.  Sumner,  2  Barb.  Ch.  165. 

1*  Bates,  Part.  §  338;  Story,  Agen.  §  Zl  \  Bouv.  L.  Diet.  "Part- 
ners," sub  9  et  seq.;  Pettee  v.  Orser.  18  How.  Pr.  R.  442;  Fisher 
V.  Murray,  1  E.  D.  Sm.  341;  Wells  v.  March,  30  N.  Y.  344;  Os- 
borne V.  Barge,  35  Fed.  Rep.  92;  Coleman  v.  Darling,  66  Wis.  155. 


38  CORPORATIONS.  [§  30. 

property  is  liable  to  sale  by  execution  for  payment  of  his 
individual  debts ;  and  the  purchaser  of  such  sale  becomes 
a  tenant  or  owner  in  common  with  the  other  partners.  But 
partnership  property  must  first  be  applied  to  the  payment 
of  the  partnership  debts,  and  the  adjustment  of  partner- 
ship equities;  and,  hence,  a  purchaser  on  a  sale  at  the  in- 
stance of  an  individual  creditor,  will  take  only  the  interest 
of  the  judgment  debtor  remaining  after  the  payment  of 
such  debts,  and  adjustment  of  equities  between  the  part- 
ners.^^ 


§  30.  Corporations. — A  corporation  is  an  artificial  per- 
son created  by  law,  and  endowed  by  its  creator  with  certain 
attributes,  rights,  and  privileges,  common  to  a  natural  per- 
son. It  has,  however,  some  franchises  which  do  not  belong 
to  individuals  generally  of  common  right,  and  is  subject  to 
some  limitations  from  which  natural  persons  are  free.  In 
contemplation  of  law,  the  artificial  body  thus  created  is  an 
entity  distinct  from  the  individuals  that  compose  it;  and 
corporations  aggregate  are  characterized  as  immortal  by 
Chief  Justice  Marshall,  in  the  famous  Dartmouth  College 
case,  meaning  thereby  that  they  have  the  property  of  suc- 
cession, by  which  the  body  remains  the  same  under  all 
changes  of  its  membership.^" 


IS  Wright  V.  Ward,  65  Cal.  523;  Daniel  v.  Owen,  70  Ala.  297; 
Randall  v.  Johnson,  13  R.  I.  338;  Read  v.  Lanahan,  47  N.  Y. 
Super.  Ct.  Rep.  275 ;  Hutchinson  v.  Dubois,  45  Mich.  143 ;  Hersh- 
field  V.  Claflin,  25  Kan.  166;  Atkins  v.  Saxton,  11  N.  Y.  195; 
Strauss  v.  Frederick,  19  N.  C.  121;  Smith  v.  Jones,  18  Neb.  481; 
Davis  V.  Howell,  ZZ  N.  J.  Eq.  72. 

J«Morawetz.  Corp,  vol.  1,  §  1 ;  1  Dill.  Mun.  Corp.  §  9;  2  Black. 
Com.  p.  468,  ct  seq.;  Boone,  Corp.  §  1 ;  Dartmouth  Coll.  v.  Wood- 
ward, 4  Wheat,  6ZZ;  People  v.  Assessors,  etc.,  1  Hill,  616,  620; 
Providence  Bank  v.  Billings,  4  Pet.  562;  Brunswick  v.  Dunning, 
7  Mass.  445,  447. 


§  30.]  CORPORATIONS.  39 

Corporations  are  created  by  the  sovereign  power  of  the 
state  which,  in  this  country,  is  exercised  through  the  legis- 
lature. They  may  rest  on  prescription;  but  in  such  case 
long  user  presupposes  an  original  grant  from  which  their 
existence  was  derived. ^^ 

The  United  States  Congress,  as  well  as  the  State  legisla- 
tures, has  power  to  create  corporations,  public  or  private, 
"whenever  these  become  an  appropriate  means  of  exercis- 
ing any  of  the  constitutional  powers  of  the  general  govern- 
ment, or  of  facilitating  its  lawful  operations  in  the  States 
or  Territories."^* 

Corporations  are  classified  thus :  Public,  and  private ;  ag- 
gregate and  sole ;  ecclesiastical  or  religious,  and  lay ;  and  the 
latter  are  subdivided  into  elemosynary,  and  civil.  But  the 
plan  and  scope  of  this  work  do  not  require  more  than  a 
statement  of  the  classification ;  and  most  of  the  doctrines 
presented  under  this  section  apply  especially,  though  not 
exclusively,  to  private  corporations  aggregate,  as  illustrat- 
ing the  method  of  holding  or  owning  personal  property,  the 
point  now  under  discussion.^^ 

It  is  quite  apparent,  from  the  nature  and  organization  of 
corporations,  that  they  must  act  through  natural  persons  as 
agents;  and  these  are  primarily  and  principally  the  officers 


I'Morawetz,  Corp.  vol.  1,  §  8;  1  Dill.  Mun.  Corp.  §§  15,  17;  2 
Kent,  Com.  p.  276;  McCulloch  v.  Maryland,  4  Wheat.  316.  424; 
Franklin  Bridge  Co.  v.  Wood,  14  Ga.  80;  Stone  v.  Flagg,  72  111. 
397;  Sherwood  v.  Am.  Bible  Soc.  1  Keyes,  561. 

18  1  Dill.  Mun.  Corp.  §  18;  Morawetz,  Corp.  vol.  1,  §  9;  Os- 
borne V.  Bank  of  U.  S.,  9  Wheat,  738;  Thompson  v.  Pacific  R.  R. 
Co.,  9  Wall.  519;  Pacific  R.  R.  Co.  v.  Lincoln  Co.,  1  Dill.  C.  C.  R. 
314. 

19  Morawetz,  Corp.  vol.  1,  §  3;  1  Dill.  Mun.  Corp.  §  34;  Dart- 
mouth Col.  V.  Woodward,  4  Wheat.  518;  People  v.  Assessors, 
etc.,  1  Hill,  616;  Robertson  v.  Bullions,  11  N.  Y.  243;  Silsby  v. 
Barlow,   16  Gray,  329. 


40  CORPORATIONS.  [§  30. 

of  the  corporate  body.  But,  corporations  generally  have  the 
same  power  as  natural  persons  of  appointing  sub-agents, 
when  the  legitimate  business  of  the  body  makes  it  necessary 
or  proper.  The  officers  are,  in  a  sense,  superior  to  their 
principal  in  so  far  as  the  individual  corporators  constitute 
the  body.  They  are  charged  by  law  with  certain  duties,  and 
clothed  with  certain  authority ;  and  in  the  discharge  of 
these  duties,  or  the  exercise  of  this  authority,  the  corpora- 
tors cannot  rightfully  interfere.  Courts  of  equity  will  not 
exercise  their  jurisdiction  to  direct  or  control  officers  in  re- 
gard to  their  duties,  except  in  clear  cases  of  fraud  or  ex- 
cess of  authority,  where  there  is  no  adequate  remedy  at 
law.2" 

The  early  common-law  doctrine  that  a  corporation  aggre- 
gate has  no  power  of  contract  except  by  specialty,  is  so 
changed  that  such  a  corporation,  when  acting  within  the 
limits  of  its  chartered  powers,  and  the  range  of  the  purposes 
of  its  organization,  may  take  binding  parol  contracts.  In 
case  of  specialties  the  corporate  seal  is  still  essential  to  a 
binding  contract,  but  in  all  other  respects  the  power  of  a 
corporation  to  perform  all  legitimate  acts,  and  make  all 
necessary  and  proper  contracts  by  parol,  through  its  author- 
ized agents,  is  substantially  the  same  as  that  of  a  natural 
person.  And,  as  in  case  of  a  natural  person,  promises  may 
be  implied  from  the  acts  of  a  corporation,  or  of  its  agents. ^^ 

20Morawetz,  Corp.  vol.  1,  §§  503,  504;  Pom.  Eq.  §  1090;  Plant- 
ers' Bank  v.  Andrews,  8  Port.  404;  N.  H.  Sav.  Bank  v.  Downing, 
6  N.  H.  187;  Church  v.  Sherman,  36  Wis.  404;  Belmont  v.  Erie 
Railway  Co.,  52  Barb.  637. 

212  Kent,  Com.  pp.  289-291;  Bank  of  Columbia  v.  Patterson,  7 
Cranch,  299;  Fleckner  v.  U.  S.  Bank,  8  Wheat.  338;  Burrill  v. 
Nahant  Bank,  2  Met.  163 ;  Strauss  v.  Eagle  Ins.  Co.,  5  Ohio  St.  59 ; 
Partridge  v.  Badger,  25  Barb.  146;  Barry  v.  Merch.  Exch.  Co.,  1 
Sandf.   Ch.  280;   Merchants'  Bank  v.   Bank  of   Columbia,  5  Wheat. 


§  30.]  CORPORATIONS.  41 

By  the  common  law,  corporations  have  the  capacity  of 
taking,  holding,  possessing,  aliening,  and  transmitting  in 
succession,  real  and  personal  property  to  the  same  extent 
as  natural  persons,  so  far  as  necessary  for  the  purposes  of 
their  creation.  But  this  capacity  may  be,  and  generally 
is,  limited  by  their  charter,  or  by  general  statutory  law,  es- 
pecially in  respect  to  real  estate.^^ 

The  individual  corporators  have  not  the  same  ownership 
or  interest  in  the  corporate  property,  as  have  tenants  or 
owners  in  common,  joint  owners,  or  partners,  in  the  com- 
mon property  of  their  respective  associations.  In  other 
words,  they  are  not  owners  in  common,  joint  owners,  or 
partners ;  but  the  title  is  in  the  artificial  body  which,  in  con- 
templation of  law  as  we  have  seen,  is  distinct  from  the 
members  of  the  corporation.  The  capital  of  private  cor- 
porations aggregate  is  divided  into  shares,  called  stock. 
These  shares  give  to  holders  an  interest  in  the  capital  to  the 
extent  of  their  value,  and  entitle  them  to  a  corresponding 
and  proportionate  part  of  the  profits  of  the  business.  The 
term  stock,  in  its  full  legal  import,  embraces  the  whole  in- 
terest of  the  share-holders  in  the  corporation,  and  all  their 
rights  growing  out  of  the  relation.  It  includes  the  right  to 
share  in  all  dividends,  and  surplus  profits  issuing  from  the 
use  of  the  capital  stock,  and  also  their  proportionate  share 
of  the  capital  and  property  of  the  corporation  on  its  disso- 
lution, after  payment  of  the  debts. 

But  a  shareholder  has  no  legal  title  to  the  property  or 


326;  Bank  of  U.  S.  v.  Dandridge,  12  Wheat.  68;   Sheldon  v.  Fair- 
fax, 21  Vt.  102 ;  Palmer  v.  Medina  Ins.  Co.,  20  Ohio,  537. 

22Morawetz,  Corp.  vol.  1,  §  327;  2  Kent.  Com.  p.  278;  Dutch 
Church  V.  Mott,  7  Paige,  83 ;  Raymond  v.  Commissioners,  etc.,  5 
Ohio,  205 ;  McCartee  v.  Orph.  Asy.  Soc.  9  Cow.  437 ;  Ketchum  v. 
Buffalo,  14  N.  Y.  356;  Robie  v.  Sedgwick,  35  Barb.  319;  Infra, 
Ch.  XIII. 


42  JOINT-STOCK  COMPANIES.  [§  31. 

profits  until  a  division  is  made,  or  a  dividend  is  actually 
declared.  When  declared  it  is,  in  contemplation  of  law, 
served  from  the  common  fund,  and  becomes  the  individual 
property  of  the  stockholders,  which  they  are  entitled  to  re- 
ceive, and  for  which,  on  demand  and  refusal,  they  may 
severally  maintain  an  action  of  assumpsit  against  the  corpo- 
ration. A  dividend  declared  is  thereafter  held  as  a  trust 
fund  by  the  corporation,  and  it  cannot  rightfully  be  de- 
voted to  other  objects. 

The  owner  of  stock  may  assign  or  transfer  it  at  pleasure, 
and  give  to  the  assignee  the  same  title  and  interest  held  and 
owned  by  himself,  including  dividends  thereafter  declared, 
whether  earned  before  or  after  the  transfer;  and  the  as- 
signee will  be  subject  to  the  obligation  and  disabilities  of 
the  assignor  among  which  is  the  liability  for  installments 
thereafter  called  for.  But  a  share-holder  cannot  so  dispose 
of  his  interest  as  to  separate  it  from  the  body  of  stock  held 
in  common  with  other  stockholders. 

At  common  law,  stock  cannot  be  taken  in  execution  and 
sold  for  the  debts  of  the  owner;  but  it  may  be  reached  for 
the  benefit  of  creditors  by  means  of  equity  proceedings.-^ 

§  31.  Joint-stock  compames. — These  associations  oc- 
cupy a  middle  ground  between  corporations  and  partner- 
ships, having  features  peculiar  to  each.     Like  corporations 


23Morawetz,  Corp.  vol.  1,  §§  33-227;  Pom.  Eq.  Jur.  §  1090; 
1  Sch.  Pers.  Prop.  p.  642;  Ang.  &  Ames,  Corp.  §§  588,  589;  Hyatt 
et  al.  V.  Allen,  56  N.  Y.  196 ;  Brightwell  v.  Mallory,  10  Yerg.  196 ; 
State  V.  Franklin  Bank,  10  Ohio,  90,  97;  Duvergier  v.  Fellows,  5 
Bing.  248;  Quiner  v.  Marblehead  Ins.  Co.,  10  Mass.  476;  Moore  v. 
Bank  of  Commerce,  52  Mo.  Z77 ;  Bayard  v.  Farmers,  etc..  Bank, 
52  Pa.  St.  232 ;  Sabine  v.  Bank  of  Woodstock,  21  Vt.  353 ;  Howe  v. 
Starkewather,  17  Mass.  240;  Denton  v.  Livingston,  9  Johns.  96; 
Granger  v.  Bassett,  98  Mass.  462;  LeRoy  v.  Globe  Ins.  Co.,  2  Edw. 
Ch.  657. 


§  31.]  JOINT-STOCK   COMPANIES.  43 

they  have  a  common  name,  usually  descriptive  of  their  busi- 
ness, and  which  does  not,  as  in  partnerships,  consist  of  the 
names  of  the  members.  They  have  also,  like  corporations, 
their  officers,  by-laws,  and  rules  of  procedure,  and  by  these 
rules  and  by-laws  the  election  of  officers,  transactions  of 
business,  and  the  transfer  of  shares,  are  regulated.  The 
transfer  of  shares  or  the  interest  of  a  member  in  the  prop- 
erty of  the  company,  is  made  by  certificate  or  scrip,  issued 
and  recorded  in  substantially  the  same  manner  and  form  as 
in  the  case  of  corporations.  But  they  are  more  assimilated 
to  partnerships  than  to  corporations,  both  in  respect  of  or- 
ganic character,  and  of  their  internal  and  external  rela- 
tions; and  they  are  generally  subject  to  the  law  of  partner- 
ships. They  have  been  characterized  as  partnerships  in 
which  the  capital  is  divided,  or  agreed  to  be  divided,  into 
shares  so  as  to  be  transferable  without  the  express  consent 
of  all  the  co-partners,  not  an  inapt  characterization.-* 

In  England  joint-stock  companies  are  regulated  by  stat- 
ute. When  not  incorporated,  or  organized  under  and  regu- 
lated by  statute,  general  or  special,  they  are  in  essence  part- 
nerships by  whatever  name  christened,  albeit  parterships 
of  a  peculiar  character.^^ 

Joint  stock  companies  have  not  been  favored  in  America. 

Between  corporations  and  joint-stock  companies  there  is 
a  marked  difference  in  this :  In  the  former  the  rights,  du- 
ties, and  responsibilities  of  the  body  and  of  its  members, 

2*  Morawetz,  Corp.  vol.  1  §  6 ;  Pars.  Part.  pp.  541-546 ;  1  Sch. 
Pers.  Prop.  pp.  247-250;  3  Kent,  Com.  pp.  27,  28;  Bouv.  L.  Diet. 
"Joint-stock  Companies." 

-^  Citations  supra;  and  Williams  v.  The  Bank  of  Mich.,  7  Wend. 
542;  Tenney  v.  The  N.  E.  Protective  Union,  37  Vt.  64;  The  King 
V.  Dodd,  9  East.  516;  Holmes  v.  Higgins,  1  B.  &  C.  74;  Hess  v. 
Werts,  4  Serg.  &  R.  356;  Gorman  v.  Russell.  18  Cal.  688;  Robbins 
V.  Butler,  24  111.  387. 


44  JOINT-STOCK  COMPANIES.  [§31. 

are  prescribed  and  governed  strictly  by  the  provisions  of 
their  respective  charters,  and  the  general  corporation  laws 
applicable  to  such  corporations ;  and  stockholders  are  not 
personally  or  individually  liable  for  the  acts  or  contracts 
of  the  officers  or  members  of  the  body,  unless  expressly  so 
made  by  the  charter,  or  the  general  statutory  law  applica- 
ble to  such  bodies.  Whereas,  in  all  unincorporated  compa- 
nies, where  the  common-law  rule  is  not  changed  by  statute, 
the  stockholders  are  personally  responsible  in  their  indi- 
vidual capacities  for  all  acts  and  contracts  of  the  company, 
and  of  its  authorized  agents,  within  the  scope  of  the  busi- 
ness of  the  association,  the  same  as  in  partnerships  proper.^* 

There  is  an  important  difference  between  a  partnership 
and  a  joint-stock  company  in  the  effect  produced  by  the 
death  of  a  member,  or  the  transfer  of  all  his  interest  in  the 
association.  In  the  former  it  works  a  dissolution  of  the 
company;  but  not  necessarily,  or  generally,  so  in  the  lat- 
ter.2^ 

From  what  has  now  been  said  in  regard  to  joint-stock 
companies,  it  will  be  correctly  inferred  that  the  common- 
law  rule  applicable  thereto  may  be  changed  by  statute,  or 
modified  in  their  application  by  articles  of  agreement.  And 
it    should   be   noted   that,    when   associations    intended   as 


26  1  Story,  Part.  pp.  107-109;  Pars.  Part.  pp.  544,  545;  Babb  v. 
Read,  5  Rawle,  157;  Tappan  v.  Bailey,  4  Mg.  535;  Cox  v.  Bad- 
fish,  35  Me.  302;  Skinner  v.  Dayton,  19  Johns.  513;  Penn.  Ins. 
Co.  V.  Murphy,  5  Minn.  36;  Henry  v.  Jackson,  Z7  Vt.  431;  and 
Gorman  v.  Russell,  18  Cal.  688;  Williams  v.  The  Bank  of  Mich., 
Tenney  v.  The  N.  E.  Protective  Union,  and  Robbins  v.  Butler, 
cited  supra. 

27  Pars.  Part.  pp.  545,  547;  Putnam  v.  Wise,  1  Hill,  234;  Mur- 
ray V.  Bogart,  14  Johns.  318;  Marquand  v.  N.  Y.  Manuf.  Co.,  17 
Id.  535 ;  Woodwell  v.  Keeler,  8  Watts  &  S.  63 ;  Kingman  v.  Spurr, 
7  Pick.  235;  Mason  v.  Connell,  1  Whart.  381;  James  v.  Woodruff,. 
2  Denio,  574. 


§  31.]  JOINT-STOCK  COMPANIES.  45 

joint-stock  companies,  fail  to  become  such  on  account  of 
some  informality  in  their  organization,  they  generally  con- 
stitute partnerships,  and  are  subject  to  the  laws  applicable 
thereto.^' 

In  some  cases  the  legal  title  to  all  the  property  of  the 
company  is  vested  in  trustees,  who  hold  it  in  trust  for  the 
benefit  of  the  share-holders,  who  have  the  equitable  interest; 
but  this  does  not  affect  the  rules  herein  presented  as  gov- 
erning such  companies. 

It  may  be  added  that  generally,  as  in  the  case  of  corpora- 
tions, the  business  of  joint-stock  companies  is  managed  by 
their  officers  and  other  agents  employed  for  the  purpose; 
and  to  the  relation  of  principal  and  agent,  thus  created  the 
general  law  of  agency  applies.-^ 

Joint-stock  companies,  like  corporations  aggregate  and 
partnerships,  may  take,  hold,  and  alien,  both  real,  and  per- 
sonal property,  subject  to  statutory  limitations  and  regula- 
tions. 

28  Pars.  Part.  p.  548;  Whipple  v.  Parker,  29  Mich.  370;  Man- 
ning V.  Gasharie,  27  Ind.  399;  National  Bank  v.  Landon,  45  N.  Y. 
410. 

2»Pars.  Part.  p.  542. 


46  MODES   OF  ACQUIRING   TITLE.  [§  32. 


CHAPTER  VI. 
MODES  OF  ACQUIRING  TITLE  TO  PERSONAL  PROPERTY. 

§  32:  Modes  of  acquiring  title  classified  and  analyzed. 

§  32.  Modes  of  acquiring  title  classified  and  analyzed.— 

By  a  common  and  convenient  analysis  and  grouping,  there 
are  three  general  ways  in  which  title  to  personal  property 
may  be  acquired,  viz  : 

First.  By  original  acquisition ; 

Second.  By  transfer  by  act  of  law ;  and 

Third.  By  transfer  by  act  of  the  parties.^ 

These  general  ways  are  severally  sub-divided  into  par- 
ticular methods,  each  embracing  its  specific  ways  of  ac- 
quiring title  to-wit : 

First.   Original  acquisition;  sub-divided  into — 

1.  Occupancy;  embracing  (a)  goods  taken  by  cap- 

ture in  war;  (b)  goods  casually  lost  by  the 
owner,  and  unreclaimed,  or  designedly  aban- 
doned; (c)  waifs;  and  (d)  reclaiming  ani- 
mals ferae  naturae. 

2.  Accession;  embracing  (a)    fruits  of  the  earth, 

produced  naturally,  or  by  human  industry; 
(b)  the  increase  of  animals;  (c)  materials  of 
one  person  united  to  the  materials  of  another; 
and  (d)  confusion  of  goods. 


1 2  Black.  Com.  pp.  2  et  seq.,  401 ;  2  Kent.  Com.  p.  356 ;  2  Sch. 
Pers.  Prop.  p.  4. 


§  32.]  MODES   OF   ACQUIRING   TITLE.  47 

3.  Products  of  intellectual  labor;  embracing   (a) 

patents  for  inventions  and  desgins;  (b)  copy- 
right; (c)  letters  addressed  from  one  corres- 
pondent to  another;  and  (d)  lectures. 

4.  Trade-marks. 

Second.  Transfer  by  act  of  law;  sub-divided  into  ( 1 )  for- 
feiture; (2)  succession;  (3)  judgment;  (4)  intestacy; 
(5)  insolvency;  and  (6)  marriage. 

Third.  Transfer  by  act  of  the  parties;  sub-divided  into 
(1)  gifts  inter  vivos;  (2)  gifts  causa  fnortis;  (3)  title  by 
will  or  testament ;  (4)  sales;  (5)  indorsements;  (6)  assign- 
ments; and  (7)  bailments. 

In  the  chapters  following,  these  general  and  particular 
methods  of  acquiring  title  to  personal  property  will  be  dis- 
cussed briefly  in  the  order  above  named,  including  the  spe- 
cific modes  under  each  sub-division. 

In  considering  the  methods  of  acquiring  title,  the  ways  of 
losing  it  will  necessarily  appear;  and  hence  direct  treat- 
ment of  the  latter  would  be  superfluous. 


48  OCCUPANCY.  [§  33. 

CHAPTER  VII. 
TITLE  BY  ORIGINAL  ACQUISITION. 

§  33.  Occupancy ;    the   first   known   method   of    acquiring   title. 

34.  Goods  taken  by  capture  in  war. 

35.  Good  lost  or  abandoned. 

36.  Waifs. 

37.  Reclamation  of  animals  ferae  naturae. 

38.  Title  by  accession ;  defined. 

39.  Fruits  of  the  earth. 

40.  Increase  of  animals. 

4L  Materials   of   one  person   united   to   those   of   another. 

42.  Products  of   intellectual   labor,   discussed. 

43^6.  Patents   for   inventions  and  designs. 

47-50.  Copyright. 

51.  Letters    from   one   correspondent    to   another. 

52.  Lectures. 
53-60.  Trademarks. 

§  33.  Occupancy. — Under  original  acquisition,  the  first 
general  mode  of  acquiring  title  to  personal  property,  occu- 
pancy is  primal.  This  includes  the  original  or  beginning 
of  title,  and  also  the  recommencement  when  the  chain  has 
been  broken,  and  the  connecting  link  is  lost.  Occupancy  is 
generally  regarded  as  the  first  known  method  of  acquiring 
exclusive  title  to  property. 

The  origin  and  foundation  of  the  right  of  private  prop- 
erty has  given  rise  to  much  learned  discussion,  and  some 
difference  of  opinion  among  publicists.  Without  attempt- 
ing in  this  connection  to  present  the  different  views  and 
lines  or  argument  on  the  question,  it  will  be  assumed  in  ac- 
cord with  the  author's  belief,  that  the  right  of  property  is 
of  Divine  origin,  derived  by  title  deed  from  the  original 
Creator  of  all  things,  and  attested  by  universal  intuition. 


§  33.]  OCCUPANCY.  49 

Among  all  nations  and  peoples,  from  the  rudest  and  most 
barbarous  to  the  most  highly  civilized  and  polished,  there 
has  always  existed  a  natural  sense  of  property,  the  recogni- 
tion of  a  natural  law  of  property.  There  has  always  and 
everywhere  existed  an  intuitive  conviction  of  a  natural 
right  to  gratify  the  universal  desire  of  mankind  to  acquire 
and  possess  external  things,  and  to  exercise  exclusive  do- 
minion over  them.  And  it  is  written  by  the  pen  of  inspira- 
tion that  our  infinitely  wise  beneficent  Creator  gave  to 
men  "dominion  over  the  fish  of  the  sea,  and  over  the  fowl 
of  the  air,  and  over  the  cattle,  and  over  all  the  earth,  and 
over  every  creeping  thing  that  creepeth  upon  the  earth. "^ 

But  assuming  that  by  force  of  natural  law  and  Divine 
ordinance,  the  right  of  property  in  external  things  in  the 
aggregate  belongs  to  the  human  race  collectively,  the  ques- 
tion still  remains, — How  can  an  individual  acquire  exclu- 
sive title  to  things  in  the  segregate?  To  this  question  no 
writer  has  given  a  more  satisfactory  answer  than  Chancellor 
Kent,  who  says :  "The  exclusive  right  of  using  and  trans- 
ferring property,  follows  as  a  natural  consequence,  from 
the  perception  and  admission  of  the  right  itself,"  that  is, 
the  perception  and  admission  of  the  truth  that  the  acquisi- 
tion and  enjoyment  of  property  is  a  law  of  man's  nature. 

It  is  claimed  by  some  writers,  that  in  the  infancy  of  so- 
ciety there  was  a  community  of  goods.  There  may  have 
been  a  community  in  the  substance  of  things,  in  the  sense 
that  property  in  the  aggregate  belongs  to  mankind  as  a 
whole ;  but  community  cannot  reasonably  be  predicated  of 
the  use  of  things  while  in  the  possession  of  individuals,  it 
being  impracticable,  and  in  conflict  with  the  natural  right 
of  private  property.  Referring  to  the  germinant  period  of 
legal  ideas  in  the  early  stages  of  society,  we  find  that  the 

^  Genesis,  ch.  I,  v.  26. 


50  OCCUPANCY.  [§  33. 

usufruct  constituted  the  only  benefit  and  value  of  prop- 
erty ;  and  hence  the  theory  of  a  community  in  the  substance 
of  things,  based  upon  the  doctrine  that  to  mankind  in  gen- 
eral belong  the  subjects  of  property  as  a  whole  is  not  in- 
compatible with  the  right  of  individuals  to  the  exclusive 
use  of  particular  things. 

But,  whatever  theory  we  adopt,  the  fact  is,  that  he  who 
first  appropriated  a  thing  to  his  own  use  acquired  a  prop- 
erty therein,  and  an  exclusive  right  thereto,  by  common 

consent;  which  property  and  right  continued,  so  long  as  the 
exclusive  use  or  occupancy  continued,  and  no  longer.  The 
right  of  possession  was  limited  to  the  act  of  possession; 
when  the  latter  ceased  the  former  was  lost;  whereupon  any 
other  individual  might  appropriate  the  thing  to  his  own 
use,  with  the  like  right  and  limitation ;  and  so  on  in  succes- 
sion indefinitely.  This  rule  is  well  adapted  to  the  intelli- 
gence and  wants  of  man  in  a  rude  and  undeveloped  condi- 
tion of  the  race.  His  nature  is  largely  sensuous ;  he  is  un- 
able to  grasp  abstract  principles,  and  his  perception  of  in- 
telligent ideas  is  confused  and  feeble.  Hence  the  truth  of 
the  saying  that  "property  without  possession,  was  too  ab- 
stract an  idea  for  savage  life."  It  may  be  said  also  with 
equal  truth,  that  the  mere  use  or  occupancy  of  goods  and 
chattels  was  ample  for  the  few  and  simple  wants  of  man  in 
the  primitive  condition  of  society. 

But  the  world  moved  ;  population,  and  the  wants  of  man 
increased ;  social  relations  became  more  complex ;  individ- 
ual interests  clashed ;  and  the  time  came  when  it  was  seen 
that  personal  rights,  and  the  peace  and  welfare  of  society, 
required  practical  recognition  of  exclusive  private  prop- 
erty in  the  substance,  as  well  as  in  the  use,  of  things. 

This  doctrine  established,  another  step  in  advance,  the 
right  of  transferring  both  the  title  and  the  possession  of 


§34.]  GOODS   TAKEN    BY    CAPTURE  IN   WAR.  51 

property,  was  natural  and  logical.  Thus,  advancing  step 
by  step  as  the  exigencies  of  society  demanded,  and  reason 
dictated,  grew  up  that  just  and  enlightened  system  of  prin- 
ciples and  rules  which  constitute  the  law  of  personal  prop- 
erty. Briefly  stated,  the  order  of  development  was,  first  the 
right  of  possession  or  occupancy,  the  usufruct;  second,  the 
right  to  the  substance  of  the  thing,  which  carries  with  it 
the  prima  facie  right  of  possession,  and,  third,  the  right  to 
transfer  the  thing  itself,  including  both  the  substance  and 
the  possession. 

With  this  brief  historical  sketch  of  title  to  personal  prop- 
erty, we  are  prepared  to  discuss  the  different  ways  of  ac- 
quiring title  by  occupancy,  one  of  the  subdivisions  of  title 
by  original  acquisition.- 

§  34.  Goads  taken  by  capture  in  war.— This  constitutes 
one  mode  of  acquiring  title  by  occupancy.  At  the  common 
law,  that  title  to  goods  taken  by  capture  in  war  vested  in 
the  captor,  whether  seized  by  national  agency  or  bv  volun- 
tary individual  action ;  but  now,  by  the  general  consensus 
of  civilized  nations,  the  title  in  either  case  vests  primarily 
in  the  sovereign ;  and  captured  goods  belong  to  the  individ- 
ual captors  only  to  the  extent,  and  under  regulations,  pre- 
scribed by  positive  law. 

The  right  of  seizure  is  now  generally  regarded  as  a  mari- 
time right;  and  the  purpose  of  its  exercise  is  the  destruc- 
tion of  the  enemy's  commerce  and  navigation,  thus  weak- 
ening his  naval  power.  In  contemplation  of  law,  a  declara- 
tion of  war  duly  made  by  the  sovereign  or  government  of  a 
state,  is  a  declaration  of  war  by  all  its  subjects  individually 


2  2  Black.  Com.  pp.  2  et  scq.;  258,  401;  2  Kent,  Com.  pp.  317  et 
seq.,  356;  1  Sch.  Pers.  Prop.  pp.  1-24;  2  Id.  pp.  5-8;  Bouv.  L. 
Diet.  "Acquisition;"  Holy  Bible,  Gen.  I.  28;  And.  L.  Diet.  "Occu- 
pancy." 


52  GOODS   TAKEN   BY   CAPTURE   IN    WAR.  [§  34. 

and  collectively,  and  is  binding  upon  all.  As  a  corollary  of 
this  doctrine,  not  only  do  the  belligerent  nations  become 
enemies,  but  by  implication  all  the  subjects  of  each  become 
enemies  to  all  the  subjects  of  the  other.  From  this  doc- 
trine, in  connection  with  the  rule  of  public  law  that  the 
property  of  an  enemy,  or  of  his  subjects,  is  liable  to  cap- 
ture by  the  adverse  nation,  it  would  seem  to  follow  logically 
that  the  seizure  may  be  made  voluntarily  by  a  private  citi- 
zen, as  well  as  by  direct  sovereign  or  governmental  author- 
ity ;  and  such  is  the  law.  As  a  consequence,  title  to  the  cap- 
tured property  being  lost  by  the  owner,  would,  at  common 
law,  vest  directly  in  the  captors,  as  the  title  must  be  in 
some  body,  natural  or  corporate;  and  such  is  strictly  and 
logically  the  rule  as  between  the  belligerent  parties.  But 
the  prevailing  doctrine  of  public  law  on  the  subject  now  is, 
that  when  a  private  citizen  makes  the  seizure  he  is  sup- 
posed to  act  in  behalf  of  the  government,  whose  prerogative 
it  is  to  adopt  or  repudiate  the  seizure  at  pleasure.  Adop- 
tion by  the  government  being  equivalent  to  a  precedent  au- 
thority or  command,  the  seizure  becomes  the  act  of  the  gov- 
ernment. If  the  government  repudiates,  or  fails  to  adopt 
the  capture,  the  individual  captors  will  take  no  title  to  the 
property  seized. 

In  all  maritime  captures,  whether  by  sovereign  authority 
or  by  voluntary  private  action,  the  captured  property,  with 
proofs  of  legality  of  seizure,  must  be  submitted  to  a  prize 
court,  whose  adjudication  determines  the  legality  of  the 
capture,  and  the  transfer  of  title.  If  the  seizure  be  sus- 
tained, the  proceeds  of  the  captured  property  is  generally 
distributed  among  the  captors  as  a  "reward  for  bravery, 
and  a  stimulus  to  exertion." 

Regarding  the  property  of  alien  enemies  found  within  the 
limits  of  a  state  on  the  commencement  of  hostilities,  there 


§  34.]  GOODS   TAKEN    BY    CAPTURE  IN    WAR.  S3 

has  been  considerable  discussion,  but  the  doctrine  seems  to 
be  well  established  that  the  state  has  the  right  to  capture 
and  confiscate  such  property.  But  the  exercise  of  this  harsh 
and  practically  unjust  measure  rests  in  the  discretion  of 
the  government ;  and  the  right  itself  has  been  to  a  large  ex- 
tent practically  nullified  by  the  laws  and  ordinances  of 
many  governments,  and  by  international  treaties.  By  these 
provisions  in  the  interest  of  justice  and  progressive  civiliza- 
tion, property  of  alien  enemies  brought  into  the  country  in 
good  faith  and  with  the  sanction  of  the  government,  before 
the  outbreak  of  hostilities,  is  protected  from  confiscation. 
In  the  United  States  the  existence  of  this  right  is  made  to 
depend  upon  act  of  Congress. 

The  right  of  seizure  and  confiscation  of  private  property 
is  not  the  same  upon  the  land  as  in  naval  warfare.  It  is 
true  that,  in  cases  of  military  necessity,  the  capture  or  de- 
struction of  the  enemy's  property  on  land  is  sanctioned  by 
the  law  of  nations ;  but  the  doctrine  seems  to  be  establshed 
that  no  private  right  of  property  arises  from  capture  by 
land  forces.  And,  unnecessary  depredations  upon  private 
property  in  the  prosecution  of  hostilities  upon  land  are  re- 
stricted and  discouraged  by  wise  and  humane  commanders. 

Before  closing  this  section,  it  may  be  well  to  note  that 
one  consequence  of  a  declaration  of  war  is,  to  interdict  all 
commercial  intercourse  between  the  subjects  of  the  belliger- 
ent powers,  and  to  render  contracts  between  them  void,  ex- 
cept such  as  are  made  under  license  of  the  government,  ex- 
press or  implied.' 


M  Kent,  Com.  pp.  55-59,  97,  101,  108-112;  1  Cooley's  Black, 
p.  259,  and  n. ;  1  Abb.  U.  S.  Pr.  pp.  545-554;  Abb.  Ship.  (7  Am. 
Ed.),  pp.  29-34;  and  notes;  Bouv.  L.  Diet.  "Capture;"  Conkl.  Prac. 
p.  461;  Bishop,  Con.  (Enl.  Ed.),  §  1000;  Brown  v.  United  States, 
8  Cranch,  110;  The  Cargo  Ship  Emulous,  1  Gall.  563;  The 
Angelica,  Blatchf.   Pr.  Cas.  566;   The  Merimac,  Id.  584;   The  Cale- 


54  GCKDDS  LOST  OR  ABANDONED.  [§  35. 

§  35.  Goods  lost,  or  abandoned. — At  common  law,  to 
goods  lost  by  the  owner  and  unreclaimed,  or  designedly 
abandoned  by  him,  the  finder  acquires  title  by  occupancy. 
But  the  former  owner  must  have  completely  relinquished 
the  chattel  before  a  perfect  title  will  accrue  to  the  finder.* 

The  title  to  lost  goods  remains  in  the  former  owner  until 
he  abandons  the  intention  of  reclaiming  them,  and  such  in- 
tention may  be  presumed  by  lapse  of  time,  or  shown  by 
some  affirmative  act  on  his  part ;  the  fact  in  all  cases  being 
determined  by  the  circumstances.  Until  such  abandonment 
he  will  have  the  right  to  take  possession  of  the  lost  chattel 
whenever  and  wherever  he  may  find  it,  even  though  it  may 
have  passed  into  the  hands  of  a  bona  fide  purchaser.  But, 
in  the  meantime,  the  finder  or  purchaser  will  have  a  special 
property  in  the  chattel,  which  will  enable  him  to  maintain 
trespass  or  trover  against  a  stranger  for  an  unauthorized 
interference  with,  or  conversion  of,  the  property.^ 

In  case  the  finder  knows  the  owner,  or  if  circumstances 

donia,  4  Wheat.  100 ;  Carington  v.  Merchant's  Ins.  Co.,  8  Pet. 
495;  Taylor  et  al  v.  The  United  States,  3  How.  197;  United 
States  V.  The  Active,  2  Car.  Law  Repos.  192 ;  United  States  v. 
Two  hundred,  etc.,  bales  of  Cotton,  Law  Rep.  N.  S.  451  ;  And.  L. 
Diet.  "Capture." 

*2  Kent,  Com.  pp.  356,  357;  2  Sch.  Pers.  Prop.  p.  14  et  scq.; 
Williams,  Pers.  Prop.  p.  24;  Bridges  v.  Hawkesworth,  9  Eng.  L. 
&  Eq.  424;  Livermore  v.  White,  74  Me.  456,  Am.  Rep.  600; 
Hamaker  v.  Blanchard,  90  Pa.  St.  2,77.  35  Am.  Rep.  664; 
Brown  v.  SuUivan,  62  Ind.  281 ;  Tancil  v.  Seaton,  28  Gratt.  (Va.) 
601;  Durfee  v.  Jones,  11  R.  I.  586;  New  York  &  H.  R.  Co.  v.  Haws, 
56  N.  Y.   175. 

^2  Kent,  Com.  p.  356;  2  Sch.  Pers.  Prop,  p  14  ct  seq.;  Williams, 
Pers.  Prop.  pp.  23-26 ;  Armory  v.  Delamirie,  Str.  Rep.  556 ;  Bran- 
don V.  Huntsville  Bank,  1  Stewart  (Ala,),  320;  Agar  v.  Lisle,  Hob. 
187;  Knapp  v.  Winchester,  11  Vt.  351;  Cook  v.  Patterson,  35  Ala. 
102;  Jeffries  v.  Great  Western  R.  R.  Co.,  34  Eng.  L.  &  Eq.  122; 
Sylvester  v.  Girard,  4  Rawle,  185 ;  New  York,  etc.,  R.  R.  Co.  v. 
Haws,  56  N.  Y.  175. 


§35.]  GOODS  LOST  OR  ABANDONED.  55 

come  to  his  knowledge  indicating  the  true  ownership,  and 
he  conceals  the  finding  and  converts  the  property  to  his 
own  use,  he  may  be  held  guilty  of  larceny.  But  some  cases 
hold  that,  to  constitute  larceny  the  finder  must  have  had 
the  animus  burandi  when  the  property  was  found  and  taken 
by  him,  and  that  no  subsequent  act  or  intent  can  render 
him  guilty  of  larceny.*^ 

The  acquisition  of  title  by  finding  is  limited  to  chattels 
on  the  earth's  surface,  and  does  not  apply  to  treasure  trove, 
goods  hidden  in  the  earth.  Treasure  trove  originally  was 
coin  or  money  hidden  in  the  earth,  or  in  a  private  place, 
the  owner  being  unknown.  Although  the  title  was  in  the 
finder,  by  the  English  rule,  it  is  now  held  that  title  is  vested 
in  the  sovereign  or  state.  This  question,  however,  has  not 
been  definitely  decided  in  the  United  States.'^  It  is  held 
with  reason  that,  the  fact  of  burying  or  concealing  the 
property  by  the  owner,  indicates  his  purpose  of  retaining, 
and  negatives  the  intention  of  abandoning,  the   same.^ 

Stolen  corporeal  property  may  be  recovered  by  the  owner, 
not  only  from  the  thief,  but  from  any  person  in  whose 
hands  it  may  be  found,  even  from  a  bona  fide  purchaser. 
The  thief  acquires  no  title,  and  has  none  to  convey.® 


6  2  Kent,  Com.  p.  357;  Bishop,  Crim.  L.  §§  880-883;  2  Sch. 
Pers.  Prop.  pp.  24,  25;  Rex  v.  Mucklow,  1  Ryan  &  M.  160;  But- 
ler's Case,  3  Inst.  107;  People  v.  Anderson,  14  Johns.  294;  People 
V.  Cogdell,  1  Hill,  94;  The  State  v.  Weston,  9  Conn.  527;  People 
V.  McGarren,  17  Wend.  460;  McAvoy  v.  Medina,  11  Allen,  548; 
Bridges  v.  Hawkesworth,  7  Eng.  L.  and  Eq.  424;  And.  L.  Diet. 
"Abandoned." 

■^  Ferguson  v.  Ray,  44  Ore.  557. 

^  2  Kent,  Com.  p.  358 ;  and  cases  cited  supra. 

»3  Pars.  Cont.  (7th  Ed.)  p.  520;  2  Sch.  Pers.  Prop.  p.  22;  Bearce 
V.    Banker,    115    Mass.    129;    Moody    v.    Blake,    117    Mass.    23,    26 
Prime  v.  Cobb,  63  Me.  200 ;  Bryant  v.  Witcher,  52  N:  H.  158,  161 
Klein    v.    Seibold,    89    111.    540;    Nixon    v.    Brown,    57    N.    H.    34 
Coombs   V.   Gorden,   59   Me.    Ill;    Barker   v.   Dinsmore,    72   Pa.   St 


56  GOODS  LOST  OR  ABANDONED,  [§  35. 

But  commercial  policy  has  established  a  different  rule  in 
respect  to  money,  bank  notes,  and  current  negotiable  se- 
curities, to  which  a  bona  fide  holder  acquires  and  will  re- 
tain title  against  a  former  owner,  in  whatever  way  he  may 
have  lost  the  chattel,  even  though  it  were  solen  from  him.^'' 

And,  for  like  reasons,  the  bona  fide  holder  of  negotiable 
commercial  paper  indorsed  in  blank,  or  payable  or  in- 
dorsed to  bearer,  and  acquired  by  him  before  its  maturity, 
for  a  valuable  consideration,  and  without  notice  of  the  loss 
acquires  a  good  title,  and  can  maintain  it  against  the 
former  owner.  Nothing  short  of  mala  fides  will  defeat  the 
holder's  title." 

As  it  is  the  duty  of  the  finder  to  take  proper  care  of  the 
goods,  and  to  make  all  reasonable  efforts  to  ascertain  the 
true  owner,  it  is  but  simple  justice  that  he  should  receive 
suitable  compensation  for  his  trouble  and  expense  in  that 
regard ;  and  this  the  law  awards  him.  But  it  is  held  that 
the  finder  has  no  Hen  on  the  property  for  his  trouble  and 
expense  except  as  to  a  reward  for  its  recovery .^- 

The  common-law  doctrine  on  this  subject  has  been  more 
or  less  modified  in  some  of  our  States,  and  elsewhere,  by 
legislation,  making  the  state  instead  of  the  finder  the  para- 

427;  Mechanics,  etc.,  Bank  v.  Fanners,  etc..  Bank,  60  N.  Y.  40; 
Hill  V.  Snell,  104  Mass.  173;  Pease  v.  Smith,  61  N.  Y.  477. 

1'^  2  Sch.  Pens.  Prop.  p.  23 ;  Ventress  v.  Smith,  10  Pet.  161 ;  Hoff- 
man V.  Carow,  22  Wend.  285 ;  Goodman  v.  Simonds,  20  How.  343 ; 
Backhouse  v.  Harrison,  5  B.  &  Ad.  1098 ;  Lowndes  v.  Anderson, 
13  East.  130;  Raphael  v.  The  Bank  of  England,  17  C.  B.  161. 

112  Dan.  Neg.  Inst.  §  1469;  Story  on  Notes,  §  382;  Story,  Bills, 
§  416;  Chitty,  Bills  (13  Am.  Ed.)  pp.  254,  255;  Murray  v.  Lardner, 
2  Wall.  710 ;  Garvin  v.  Wiswell,  83  111.  216. 

^-2  Kent,  Com.  p.  356;  2  Sch.  Pers.  Prop.  pp.  15.  16;  Williams, 
Pers.  Prop.  p.  28  ct  seq.;  Nicholson  v.  Chapman,  2  H.  Bl.  254; 
Wentworth  v.  Day,  3  Met.  352;  Marvin  v.  Treat,  2)7  Conn.  %; 
Wood  V.  Pierson,  45  Mich.  313. 


§  36.]  WAIFS.  57 

mount  owner,  subject  to  the  rights  of  the  true  owner,  and 
also  in  some  other  particulars. 


§  36,  Waifs. — Stolen  goods  waived  or  thrown  away  by 
a  thief  in  his  flight,  through  fear  of  apprehension,  arc 
called  waifs.  If  the  goods  thus  waived  be  seized  by  a  pub- 
lic officer,  or  by  a  private  person,  before  the  owner  reclaims 
them,  then,  the  latter,  at  common  law,  loses  his  title  thereto. 
This  is  on  the  assumption  that  the  owner  was  culpably  neg- 
ligent in  pursuing  the  thief  and  reclaiming  his  goods,  and 
therefore  should  lose  his  title  as  a  punishment.  In  Eng- 
land, when  waifs  are  first  seized  by  somebody  other  than 
the  owner,  the  title  vests  in  the  crown;  but  if  first  seized 
and  reclaimed  by  the  owner  he  does  not  forfeit  his  title. 
When  the  title  does  pass  to  the  crown,  the  owner  may  re- 
claim his  goods  by  following  and  capturing  the  thief,  or  by 
furnishing  evidence  sufficient  to  cause  his  conviction  after 
capture.  If  the  thief  conceals  the  goods,  or  does  not  take 
them  with  him  in  his  flight,  they  are  not  waifs  and  the 
owner  may  have  them  again  at  his  pleasure. 

The  goods  of  a  foreign  merchant,  though  stolen  and 
waived  in  flight  by  the  thief,  are  not  deemed  waifs  or  bona 
waviata;  the  reason  whereof,  suggested  by  Blackstone,  be- 
ing, "not  only  for  the  encouragement  of  trade,  but  also  be- 
cause there  is  no  willful  default  in  the  foreign  merchant's 
not  pursuing  the  thief ;  he  being  generally  a  stranger"  to 
the  laws,  usages,  and  language  of  England. 

In  this  country,  it  is  generally  held  that  waifs  pass  to 
the  state  in  trust  for  the  true  owner,  who  may  regain  his 
property  by  making  due  proof  of  his  rights.^^ 


13  Black.  Com.  (Cooley's  Ed.)  p.  297,  and  notes;  2  Id.  p.  409; 
Kent,  Com.  p.  359;  2  Sch.  Pers.  Prop.  p.  9;  And.  L.  Diet.  "Waifs;" 
Bouvier  L.  Diet.  "Waifs." 


58  RECI.AMATION  OF  ANIMAI.S.  [§  37. 

§  37.  Reclamation  of  animals  ferae  naturae. — Another 
mode  of  obtaining  title  to  personal  property  by  original  ac- 
quisition, through  occupancy,  is  by  reclaiming  animals  wild 
by  nature,  ferae  naturae.  Wild  animals  belong  to  nobody 
in  particular;  yet  they  become  the  qualified  property  of 
any  one  who  subjects  them  to  his  possession  or  power.  The 
qualified  property  thus  acquired  continues  in  the  captor 
while  possession  or  control  is  maintained,  or  until  the  ani- 
mal becomes  so  far  domesticated  that  it  will  not  voluntarily 
leave  without  the  animus  revertendi.  When  this  point  is 
reached  the  qualified,  has  ripened  into  absolute,  property, 
the  nature  of  the  animal  being  changed  from  ferae  naturae 
to  domitae  naturae,  wild  to  tame.  Until  thus  changed,  and 
while  in  the  possession  or  power  of  the  captor,  his  qualified 
property  will  be  fully  under  the  cognizance  and  protection 
of  law ;  but  if  the  animal  escape  and  regain  its  natural  free- 
dom, without  the  animus  revertendi,  the  captor's  title  is 
wholly  lost,  and  any  other  person  may  rightfully  take  the 
fugitive,  thereby  acquiring  the  same  qualified  property 
possessed  by  the  first  captor,  and  so  on  indefinitely.^* 

Some  text  writers  have  suggested  a  practical  difficulty 
in  drawing  the  dividing  line  between  the  two  classes  of  ani- 
mals, wild  and  tame ;  and  there  has  been  some  controversy 
among  distinguished  publicists  respecting  the  origin  of  the 
distinction.  By  some  it  is  claimed  that  all  animals  are  by 
nature  wild  and  free ;  the  mild  and  docile  character  of  those 
classed  as  tame  being  the  natural  effect  of  their  subjuga- 
tion and  bondage  to  men ;  while  others  insist  that  wild  and 
savage  animals  are  by  nature  mild  and  tame,  their  wild  and 
ferocious  disposition  being  due  to  the  violent  and  inhuman 
treatment  of  man. 


"2  Black.  Com.  (Cooley's  Ed.),  pp.  390-395,  and  notes;  Id. 
p.  404;  2  Kent,  Com.  pp.  348-350;  1  Sch.  Pers.  Prop.  pp.  77-^:i; 
Williams,  Pers.  Prop.  pp.  19,  20;  And.  L.  Diet.  "Animal." 


§  37.]  RECIvAMATION  OF  ANIMATES.  59 

These  speculations  are  of  little  or  no  practical  value; 
facts  and  experience  far  outweigh  theories.  From  a  remote 
age  of  the  world  two  classes  of  animals,  wild  and  tame, 
have  been  universally  recognized ;  and  there  ought  not  to  be 
any  serious  embarrassment  in  marking  the  division  line  be- 
tween them.  Animals  that  are  generally  found  living  con- 
tentedly in  and  about  the  dwellings  of  man,  or  grazing  in 
his  fields,  and  that  minister  to  his  pleasure  and  profit,  such 
as  dogs,  horses,  sheep,  oxen,  and  other  cattle,  are  classed  as 
tame  or  domestic  by  common  and  unquestioning  consent. 
While  animals  of  a  preditory  or  ferocious  character,  that 
run  at  large  in  fields  and  forest,  and  never  visit  the  abodes 
or  haunts  of  men  except  on  stealthy  and  mischievous  ex- 
cursions, or  on  bold  raids  in  quest  of  prey,  are  known  and 
classed  as  wild  without  doubt  or  hesitancy.  Belonging  to 
the  latter  class  there  are,  however,  some  of  an  exceptionally 
mild  type  that  frequently  become  domesticated,  and  hence 
absolute  property  of  their  owners ;  among  which  are  deer, 
hares,  rabbits,  and  others  of  like  character.^^ 

Doves  are  also  classed  as  animals  ferae  naturae.  As  such 
they  are  not  the  subject  of  larceny,  except  when  in  the  care 
and  custody  of  the  owner.^^ 

Honey-bees  are  ferae  naturae;  but,  when  reclaimed  and 
hived,  they  become  the  subjects  of  qualified  property.  But 
the  finding  of  a  bee-tree  on  the  land  of  another,  and  mark- 
ing it  does  not  give  title  to  the  finder.  If  bees  when  hived 
escape,  or  a  swarm  departs  from  the  hive,  the  owner  does 
not  lose  his  property  in  them  so  long  as  he  pursues  and  is 
able  to  identify  them.^'' 


1^  Citations  supra,  and  Manning  v.  Mitcherson,  69  Ga.  447, 
47  Am.  Rep.  764 ;  Armory  v.  Flyn,  10  Johns.  102. 

I*'  Commonwealth  v.  Chace,  9  Pick.  15. 

17  Kent,  Com.  p.  350;  2  Black.  Com.  (Cooley's  Ed.),  p.  393; 
1  Sch.  Pers.   Prop.  p.  83 ;  Gillett  v.  Mason,  7  Johns.  16 ;   Furgeson 


60  TITLE  BY  ACCESSION.  [§  38. 

Although  some  animals  ferae  naturae  may  be  the  subject 
of  ownership,  so  as  to  give  civil  remedies,  yet  another  is  not 
criminally  liable,  who  molests  them,  for  the  reason  that 
they  are  considered  of  too  base  a  nature.  Sables,  ferrets 
and  coons  have  been  included  in  this  class.^^  A  better 
rule  is  to  refer  such  cases,  to  the  test  of  money  value,  as  in 
other  instances  of  stealing.  In  some  states  a  dog  has  not 
been  considered  the  subject  of  larceny.  But  in  New  York, 
it  has  been  held  otherwise. ^'^ 

While  property  in  wild  animals  can  be  acquired  only  by 
occupancy,  actual  or  constructive,  an  actual  taking  is  not 
always  necessary  to  create  title;  it  is  sufficient  if  the  pur- 
suer bring  the  animal  within  his  power  of  control."" 

§  38.  Title  to  personal  property  by  accession. — Falling 
under  the  second  subdvision  of  original  acquisition,  is  title 
by  accession.  Chancellor  Kent,  following  the  French  and 
Louisiana  Codes,  defines  the  right  of  accession  "to  be  the 
right  to  all  which  one's  own  property  produces,  whether 
that  property  be  movable  or  immovable,  and  the  right  to 
that  which  is  united  to  it  by  accession,  either  naturally  or 
artificially."  This  definition  is  sufficiently  accurate  and 
comprehensive  for  practical  purposes ;  and  a  better  it  would 
be  difficult  to  formulate.  It  embraces  fruits  of  the  earth, 
the  increase  of  animals,  and  materials  of  one  person  united 
to  the  materials  of  another. 

V.  Miller,  1  Cow.  243;  Idol  v.  Jones,  2  Dev.  (N.  C.)  L.  162;  State 
V.  Murphy,  8  Blackf .  498 ;  Goflf  v.  Kilts,  15  Wend.  550. 

18  State  V.  Lyman,  26  Ohio  St.  400 ;  Ward  v.  State,  48  Ala.  161 ; 
State  V.  Doe,  79  Ind.  9 ;  Mullaly  v.  People,  86  N.  Y.  365. 

1*  Warren  v.  State,  1  Greene  (Pa.)  106;  State  v.  House,  65  N. 
C.  315. 

20  1  Sch.  Pers.  Prop.  p.  80;  2  Kent,  Com.  pp.  349,  350;  Pierson 
V.  Post,  3  Cai.  Cas.  175;  Buster  v.  Newkirk,  20  Johns.  75;  Mul- 
lett  V.  Bradley,  24  Misc.  (N.  Y.)  695. 


§  39.]  FRUITS  OF  THE  EARTH.  61 

Confusion  of  goods,  though  differing  somewhat  from  ac- 
cession proper,  and  sometimes  treated  separately,  is  near 
of  kin  to  accession,  and  may  conveniently  be  discussed  in 
the  same  connection.-^ 

§  39.  Fruits  of  the  earth. — It  is  a  familiar  doctrine  that 
the  fruits  of  the  earth,  whether  produced  naturally  or  by 
human  industry,  belong  generally  to  the  owner  of  the  soil, 
and  this  doctrine  rests  upon  the  right  of  accession. 

The  same  rule  applies  to  trees,  plants,  and  seeds,  set  out 
or  sown  on  land,  whether  by  the  owner  or  some  other  per- 
son; excepting,  however,  trees  and  plants  placed  tempor- 
arily in  the  soil  of  another  by  his  consent,  with  the  privilege 
of  removal  at  pleasure. 

Under  sanction  of  this  general  doctrine,  it  has  been  held, 
that  a  party  in  possession  of  land,  claiming  adversely,  may 
pass  the  legal  title  of  the  crops  raised  thereon  by  him,  as 
against  the  true  owner  of  the  land  who  is  out  of  posses- 
sion.^^ 

§  40.  Increase  of  animals. — Of  tame  or  domestic  ani- 
mals, the  offspring  belong  to  the  dam  or  mother,  by  the  law 
of  accession.  The  maxim  partus  sequitur  ventrcm  applies 
to  the  brute  creation,  both  under  the  English,  and  the  civil, 
law,  but  not,  generally,  to  the  human  species.  Under  the 
Roman  law,  however,  and  also  by  the  slave  code  formerly 
existent  in  the  United  States,  the  maxim  was  applied  to  the 

212  Kent,  Com.  pp.  361-365;  French  Code,  Civil,  Nos.  546,  547; 
Civil  Code  of  La.  art.  490,  491 ;  2  Black.  Com.  p.  405 ;  2  Sch.  Pers. 
Prop.  pp.  31-40;   Bouv.  L.  Diet.  "Accession." 

-2  Citations  supra;  and  Johnson  v.  Hunt,  11  Wend.  135;  Fryatt 
V.  Sullivan  Co.,  7  Hill,  529;  Gallup  v.  Josselyn,  7  Vt.  334;  Ricketts 
V.  Dorrell,  55  Ind.  470;  Stockwell  v.  Phelps,  34  N.  Y.  363;  Martin 
V.  Thompson,  62  Cal.  618,  45  Am.  Rep.  663 ;  Lindsay  v.  Winona 
&  St.  Peter  R.  R.,  29  Minn.  411,  43  Am.  Rep.  228. 


62  MATERIALS  UNITED.  [§  41. 

children  of  slave  mothers ;  and  for  the  reason,  doubtless, 
that  in  contemplation  of  these  laws  slaves  were  chattels. 
The  reason  of  the  rule  as  applied  to  the  brute  creation  is, 
according  to  Puffendorf,  that  the  male  is  frequently  un- 
known, and  that  the  dam  during  pregnancy  is  almost  use- 
less to  the  proprietor,  while  having  to  be  maintained  at  his 
expense;  and,  therefore,  "as  her  owner  is  the  loser  by  her 
pregnancy,  he  ought  to  be  the  gainer  by  her  brood." 
Blackstone  mentions  an  exception  to  the  rule  in  question  in 
the  case  of  young  cygnets,  which  belong  equally  to  the 
owner  of  the  cock  and  hen ;  and  this  because  the  male  is 
well  known  by  his  constant  association  with  the  hen,  and 
the  owner  of  one  does  not  suffer  more  than  the  other  during 
pregnancy  and  nurture ;  and  hence,  as  the  reason  of  the 
rule  ceases  in  this  case,  the  rule  itself  ceases,  the  maxim 
being  ccssante  ratione  cessat  et  ipsa  lex. 

The  rule  in  question  applies,  also,  to  the  hirer  of  do- 
mestic animals  for  a  limited  period,  he  being  entitled  to 
their  increase  during  the  demise.-" 

§  41.  Materials  of  one  person  united  to  the  materials 
of  another. — The  general  doctrine  on  this  variety  of  ac- 
cession commonly  found  in  our  text-book  is,  that  where 
the  materials  of  one  person  are  united  to  the  maerials  of 
another,  by  the  labor  of  the  latter,  who  furnishes  the 
principal  materials,  the  property  in  the  joint  product  is  in 
the  latter  by  right  of  accession. 

While  this  statement  of  the  law  is  correct  as  far  as  it 
goes,  a  more  comprehensive  statement  of  the  general  doc- 
trine may  be   formulated  thus :  Where  materials  are   f ur- 

23  2  Black.  Com.  p.  390;  2  Kent,  Com.  pp.  361,  362;  1  Sch.  Pers. 
Prop.  79;  Droit  Nat.  Lib.  4,  ch.  7,  §  4;  Inst.  2,  1,  37;  Wood  v.  Ash, 
Owen's  Rep.  139 ;  Putnam  v.  Wiley,  8  Johns.  432 ;  Stewart  v.  Bell, 
33  Miss.  154;  Concklin  v.  Havens,  12  Johns.  314 


§  41.]  MATERIALS   UNITED. 


63 


nished  by  one  person,  or  several,  and  are  united  by  the  labor 
of  another,  the  joint  product  will,  in  the  absence  of  any 
agreement,  belong  to  the  contributor  of  the  most  important 
or  valuable  constituent,  whether  it  be  materials  or  labor. 
The  word  "accession"  fairly  implies  a  drawing  of  the  less 
to  the  greater. 

In  many  of  the  reported  cases,  however,  the  skill  of  the 
artist,  or  labor  of  the  manufacturer,  is  not  weighed  as 
against  the  materials,  because  the  latter  are  delivered  to  the 
former  to  be  wrought  into  a  chattel,  on  a  bailment  or  other 
contract ;  and  in  doubtful  cases  of  fact,  which  doctrine  shall 
apply  and  govern,  contract  or  accession,  will  depend  upon 
the  intention  of  the  parties.  But,  that  under  the  doctrine 
of  accession  the  value  of  the  skill  or  labor  contributed  to 
the  joint  product  may  constitute  the  principal  element,  and 
carry  the  ownership,  there  can,  on  principle,  be  no  reason- 
able doubt. 

This  view  is  in  accordance  with  the  Roman  law,  which,  in 
case  of  a  fine  painting  on  canvas,  deemed  the  latter  the 
accessory,  and  awarded  the  picture  to  the  artist  by  right  of 
accession.  Mr.  Kent  suggests  that  the  Roman  law  on  this 
point  was  inconsistent,  in  holding  that  the  same  rule  did 
not  apply  to  a  poem  or  history,  but  gave  the  joint  product 
to  the  person  furnishing  the  paper  or  parchment.  But 
Blackstone's  comment  upon  the  rule  of  the  Roman  law  in 
question  seems  to  relieve  it  from  inconsistency.  After  stat- 
ing the  rule  involving  the  supposed  inconsistency,  he  adds, 
"meaning  thereby  the  mechanical  operation  of  writing,  for 
which  it  directed  the  scribe  to  receive  a  satisfaction ;  for  in 
works  of  genius  and  invention,  as  in  painting  on  another 
man's  canvas,  the  same  law  gave  the  canvas  to  the  painter." 
This  explanation  vindicates  the  consistency  of  the  Roman 
law,  and  at  the  same  time  recognizes  the  just  rule  that  the 


64  MATERIALS   UNITED.  [§  41. 

minor  contributor  is  not  denied  compensation  for  his  labor 
or  materials.'* 

The  rule  that  the  most  important  or  valuable  constituent 
of  the  combination  draws  to  itself  as  accessories  all  the 
others,  finds  illustration  in  the  case  of  building  materials 
furnished  by  one  person,  and  by  him  wrought  into  a  house 
on.  the  land  of  another.  In  such  case,  under  the  combined 
operation  of  personal,  converted  into  real,  property,  and  the 
right  of  accession,  the  materials  will  belong  with  the  house 
to  the  owner  of  the  land,  provided  the  building  be  of  such 
a  character  as  to  make  it  part  of  the  realty.  Generally, 
however,  the  builder  is  entitled  to  compensation  for  his  ma- 
terials and  la1x)r,  either  by  express  or  implied  contract. 

Title  is  also  gained  by  a  confusion  of  goods.  A  confusion 
exists  when  there  is  such  a  mixture  of  the  goods  of  two  or 
more  persons  that  the  goods  cannot  be  distinguished.  If 
this  is  by  mutual  consent  of  the  owners,  the  interest  of  each 
in  the  mixture  is  in  proportion  to  his  share.  But  if  the 
confusion  is  caused  by  the  willful  act  of  one  party,  without 
the  other's  consent,  the  one  causing  the  mixture  must  sep- 
arate the  goods  at  his  peril  and  he  must  bear  the  whole 
loss.-^ 

The  doctrine  is  sometimes  laid  down  without  qualifica- 
tion, that  where  the  materials  of  one  person  are  converted 
by  another  into  a  new  species  of  chattel,  and  the  identity 
of  the  materials  destroyed,  the  new  product  belongs  to  the 
transformer ;  as  where  wine,  oil,  or  bread,  is  made  out  of  an- 

2*  Citations  supra,  under  §  38 ;  Pulcif er  v.  Page,  32  Me.  404 ; 
Merritt  v.  Johnson,  7  Johns.  473 ;  Betts  v.  Lee,  5  Johns.  338 ;  Stevens 
V.  Briggs,  5  Pick.  177;  Gregory  v.  Stryker,  2  Den.  628;  Eaton  v. 
Munroe,  52  Me.  63. 

25  Merritt  v.  Johnson,  7  Johns.  473 ;  Silsbury  v.  McCoon,  6  Hill, 
425. 


§41.]  MATERIAlwS   UNITED.  65 

Other's  grapes,  olives,  or  wheat.-®  But  the  rule  thus 
broadly  stated  needs  qualification.  The  true  doctrine,  the 
writer  thinks,  is  pronounced  by  the  Court  of  Appeals  of 
New  York,  in  the  case  of  Silsbury  v.  McCoon.  The  question 
is  there  thoroughly  discussed  by  several  of  the  judges;  and 
the  report  gives  also,  the  very  learned  and  elaborate  argu- 
ment of  that  eminent  lawyer,  the  late  Nicholas  Hill,  of 
counsel  for  the  plaintiffs  in  error.  The  reporters'  head 
notes  bearing  upon  this  question,  are  as  follows :  "If  a 
chattel  wrongfully  taken  retains  its  original  form  and  sub- 
stance, or  may  be  reduced  to  its  original  materials,  it  be- 
longs to  the  original  owner;  and  this  rule,  it  seems,  holds 
against  an  innocent  purchaser  from  the  wrong-doer,  with- 
out regard  to  the  increased  value  bestowed  by  him  upon  the 
chattel. 

"But  if  the  chattel  be  converted  by  an  innocent  pur- 
chaser or  holder  into  a  thing  of  a  different  species  as  where 
wheat  is  made  into  bread,  olives  into  oil,  or  grapes  into 
wine,  the  original  owner  cannot  reclaim  it. 

There  is  no  such  distinction,  however,  in  favor  of  a  Tmll- 
ful  wrong-doer.  He  can  acquire  no  property  in  the  goods 
of  another  by  any  change  wrought  in  them  by  his  labor 
or  skill,  however  great  the  change  may  be,  provided  the 
article  was  made  from  the  original  material.  There  is  no 
difference  between  the  civil  and  the  common  law  in  this 
respect." 

That  a  person  cannot  acquire  title  by  a  willful  tort,  as 
against  the  true  owner,  is  not  only  just  in  itself,  and  in 
harmony  with  the  general  doctrines  and  spirit  of  the  law, 
but  is  sanctioned  by  numerous  adjudications.^'' 


2«2  Kent,  Com.  pp.  364,  365;  2  Black.  Com.  p.  405;    Silsbury  v. 
McCoon,  6  Hill,  425,  3  N.  Y.  379. 

27  Citations   supra;   Brown   v.    Sax,   7   Cow.  95 ;    Curtis  v.   Groat, 


66  PRODUCTS   OF   INTEIvLECTUAL  LABOR.  [§  42. 

§  42.  Products  of  intellectual  labor. — These  constitute 
the  third  division  of  the  first  general  way  of  acquiring  title 
to  personal  property,  that  of  original  acquisition;  and  em- 
brace patents  for  inventions  and  designs ;  copyrights,  let- 
ters addressed  from  one  correspondent  to  another,  lectures 
and  telegrams. 

The  general  doctrine  in  regard  to  proprietary  rights  in 
the  products  of  intellectual  labor  is,  that  every  one  has  a 
natural  right  to,  and  dominion  over,  his  own  ideas  and  the 
fruits  of  his  brain-work;  he  may  keep  them  to  himself  or 
impart  them  to  others  at  his  option ;  but  when  once  volun- 
tarily published  by  him,  in  the  absence  of  statutor)^  provi- 
sions for  their  protection,  they  are  beyond  his  control,  and 
become  the  property  of  the  public,  equally  available  to  all. 
Hence,  for  the  purpose  of  promoting  science,  encouraging 
literature,  and  stimulating  inventions,  legislation  is  invoked, 
by  which  the  natural  rights  of  authors  and  inventors  are 
protected,  and  the  public  at  the  same  time  benefited  by 
their  genius. ^^ 

§  43.  Patents  for  inventions  and  designs. — The  prac- 
tice of  patent  law  is  generally  a  specialty,  confined  to  a  few 
members  of  the  profession.     A  thorough  knowledge  of  the 

6  Johns.  169 ;  Chandler  v.  Edson,  9  Johns.  362 ;  Betts  et  al.  v. 
Lee,  5  Johns.  348;  Babcock  v.  Gill.  10  Johns,  287;  Baker  v. 
Wheeler,  8  Wend.  505,  508;  Hyde  v.  Cookson,  21  Barb.  92;  Eaton 
V.  Munroe,  52  Me.  63 ;  Riddle  v.  Driver,  12  Ala.  590 ;  Strubee  v. 
Cincinnati  So.  Ry.  Trustees,  78  Ky.  481,  39  Am.  Rep.  251 ;  Wether- 
bee  V.  Green,  22  Mich.  311;  Clark  v.  Griffith,  24  N.  Y.  595;  Sam- 
son V.  Rose,  65  N.  Y.  411;  Newton  v.  Potter,  69  N.  Y.  137;  Holmes 
V.  Gilman,  138  N.  Y.  377. 

2S2  Kent,  Com.  pp.  365,  366;  2  Black.  Com.  p.  406;  1  Sch.  Pers. 
Prop.  p.  654;  2  Id.  p.  29;  Williams,  Pers.  Prop.  p.  235  et  seq., 
Goodeve,  Pers.  Prop.  p..  180,  181;  Bell's  Princp.  §  1349:  Phillips 
Pat.  ch.  11;  Drone,  Copyr.  p.  1  et  seq.;  Bouv.  L.  Diet.  "Patent," 
"Copy-right;"  Curtis,  Pat.   (3d  Ed.)   preliminary  obs. 


§  43.]  PATENTS.  67 

subject  is  essential  to  the  successful  practitioner;  and  such 
a  knowledge  can  be  acquired  only  by  a  careful  study  of  the 
text-books,  statutes,  and  adjudications  relating  exclusively 
to  the  law  of  patents.  It  will  not,  therefore,  be  attempted 
in  this  treatise  to  do  more  than  give  an  outline  view  of  the 
subject,  showing  the  nature,  and  mode  of  obtaining,  a 
patent,  and  the  general  principles  and  rules  applicable  to 
this  species  of  personal  property. 

A  patent  is  concisely  and  accurately  defined  to  be  "a 
grant  by  the  state  of  the  exclusive  privilege  of  making, 
using,  and  vending,  and  authorizing  others  to  make,  use, 
and  vend,  an  invention."-''  The  grant  by  government  is 
upon  certain  conditions;  the  grant  on  one  side,  and  a  com- 
pliance with  the  conditions  on  the  other,  constituting  in 
effect  a  contract.  In  consideration  of  the  probable  benefits 
that  may  accrue  to  the  public  from  a  knowledge  and  use  of 
a  patentable  invention,  and  also  with  the  view  of  stimulat- 
ing and  fostering  inventive  genius,  the  state  offers  to  the 
inventor  a  guaranty  of  an  exclusive  right  to  his  invention 
for  a  limited  period,  on  condition  that  he  will  publish  it  in 
such  a  manner  that  it  may  become  available  to  the  public 
at  large  on  the  expiration  of  his  exclusive  term,  and  on 
certain  other  prescribed  conditions.  Under  this  govern- 
mental guaranty,  the  inventor  retains  his  exclusive  right 
after  publication  for  the  stipulated  term,  and  has  a  prop- 
erty therein  which  is  under  the  protection  of  the  law  as 
fully  as  any  property  to  which  he  may  have  title. 

In  the  United  States,  Great  Britain,  and  a  majority  of 
foreign  states,  the  subject  of  patents  is  regulated  by  statute, 
and  in  most,  if  not  all,  foreign  states  having  no  legislation 
on  the  subject,  special  privileges  are  granted  to  inventors 

29  2  Kent,  Com.  p.  366 ;  Phillips,  Pat.  p.  2. 


68  ESSENTIALS.  [§  44. 

through  the  executive  departments  of  their  respective  gov- 
ernments.^" 

The  authority  for  patent  legislation  in  the  United  States 
is  derived  from  the  Federal  Constitution,  which  confers 
upon  Congress  the  power :  "To  promote  the  progress  of 
science  and  useful  arts,  by  securing  for  limited  times  to 
authors  and  inventors  the  exclusive  right  to  their  respec- 
tive writings  and  discoveries."^^  Under  this  provision  of 
the  Constitution  acts  of  Congress  have  been  passed  from 
time  to  time,  culminating  in  the  act  of  revision  and  con- 
solidation passed  July  8,  1870.^- 

§  44.  Essentials  of  a  patentable  invention  or  discov- 
ery.— To  entitle  a  person  to  the  privileges  and  protection 
offered  by  the  government,  he  must,  first  of  all,  present  a 
patentable  invention  or  discovery.  The  essentials  of  such 
invention  or  discovery,  under  the  laws  of  the  United  States, 
are  as  follows : 

1.  The  alleged  invention  or  discovery  must  be  new,  "not 
known  or  used  by  others  in  this  country."  Novelty  is  es- 
sential ;  and  it  is  new  in  contemplation  of  the  patent  law 
when,  and  only  when,  it  is  substantially  different  from  what 
has  been  known  to  precede  it.*^ 

In  determining  the  question  of  novelty,  the  character  of 
the  result,  and  not  the  apparent  amount  of  skill,  ingenuity, 
or  thought,  exercised  by  the  inventor,  is  the  controlling 
consideration.  If  the  result,  or  the  mode  of  producing  the 
result,  be  substantially  different  from  what  has  gone  be- 
fore, the  requisite  of  novelty  is  so  far  satisfied.^* 

30  Whitman,  Pat.  Law.  Part  II. 

31  U.  S.  Const,  art.  I,  sec.  8. 

32 U.  S.  Rev.  St.  (2  Ed.),  §§4883-4947;  citations  supra  under  §  42. 

33  U.  S.  Rev.  St.  (2  Ed.),  §  4886. 

3*  Curtis,  Pat.  §  41 ;  Kneass  v.  The  Schuylkill  Bank,  4  Wash.  9,  11 ; 


§44.]  ESSENTIALS.  69 

The  invention  must  be  new  as  to  all  the  public;  not  the 
abstract  discovery  merely,  but  the  concrete  invention;  not 
the  newly-discovered  principle  resting  in  the  brain  of  the 
discoverer,  but  the  principle  embodied  and  utilized  in  an 
"art,  machine,   manufacture,  or  composition   of   matter."^^ 

Moreover,  the  embodied  result  of  the  alleged  invention 
or  discovery  must  be  new,  and  not  merely  the  purpose  to 
which  it  is  applied,  constituting  what  is  known  as  "a  double 
use."  Illustrating  this  essential  of  novelty,  Buller,  J.,  said, 
"it  would  be  a  very  extraordinary  thing  to  say  that,  all 
mankind  having  been  accustomed  to  eat  soup  with  a  spoon, 
a  man  could  take  out  a  patent  because  he  says  you  might 
eat  peas  with  a  spoon."^® 

2.  Another  requisite  of  a  patentable  invention  is  utility. 
It  must  be  both  new  and  useful.  The  degree  of  utility, 
however,  is  not  important;  but  the  invention  must  have,  at 
least,  a  small  measure  of  usefulness.  Inventions  of  a  mis- 
chievous or  immoral  nature,  and  such  as  are  wholly  useless, 
are  not  patentable.  For  illustration,  in  1870,  an  applica- 
tion was  made  for  letters  patent  for  "a  new  process  of 
making  butter,  to  be  used  in  the  place  of  ordinary  butter." 
The  process  of  manufacture  described  by  the  applicant  con- 
sisted in  taking  about  ten  pounds  of  ordinary  butter,  and 


Davis  V.  Palmer,  2  Brock.  298,  310;  Hall  v.  Wiles,  2  Blatchf.  194-200; 
Ryan  v.  Goodwin,  3  Sum.  514,  518;  Foote  v.  Silsbj',  2  Blatchf.  260; 
Crane  v.  Price,  Webs.  Pat.  Cas.  409. 

35  Washburn  v.  Gould,  3  Story,  122;  Reed  v.  Cutter,  1  Id.  590 
Woodcock  V.  Parker,  1  Gall.  438;  Lowell  v.  Lewis,  1  Mass.  182 
Allen  V.  Blunt,  2  Woodb.  &  M.  121 ;  Parker  v.  Ferguson,  1  Blatchf 
407;  Elhthorp  v.  Robertson,  4  Id.  307;  Manny  v.  Jagger,  1  Id.  372 
Parkhurst  v.  Kinsman,  Id.  488;  Goodyear  v.  Day,  2  Wall.  Jr.  283 
Colt  V.  Mass.  Arms  Co.,  1  Fish.  108. 

36  Losh  V.  Hague,  1  Web.  Pat.  Cass.  207 ;  Benton  v.  Hawkes,  4 
B.  &  Aid.  540,  550;  Bean  v.  Smallwood,  2  Story,  408;  Hotchkiss 
V.  Greenwood,   11    How.  248. 


70  ESSENTIA!^.  [§  44. 

washing  it  in  clear  lime  water;  next,  warming  the  butter 
and  mixing  it  with  sweet  milk  and  flour  into  paste;  and 
then  coloring  it  with  eggs,  carrot,  or  annotta  and  tumeric; 
thus  increasing  the  weight  of  the  compound  to  eighteen 
pounds  of  "prime  dairy  butter."  The  application  was  re- 
jected as  not  possessing  the  patentable  requisite  of  utility. ^^ 

3.  To  be  patentable,  the  invention  must  not  have  been 
known  or  used  by  others  in  this  country.  The  applicant 
for  a  patent  must  have  been  not  only  an  original,  but  the 
first  inventor;  that  is,  the  first  inventor  who  has  reduced 
his  invention  to  a  practical  condition.  The  statute  on  the 
subject  contemplates  a  knowledge  and  use  existing  in  a 
form  and  condition  accessible  to  the  public;  and,  therefore, 
a  machine  constructed  for  experiment  merely,  and  not 
completed  or  practically  tested,  is  no  bar  to  a  patent  for  a 
perfected  practical  invention. ^^ 

Two  persons  may  have  conceived  the  same  machine,  each 
being  an  original  inventor;  but  the  one  who  first  reduces 
his  conception  to  practice,  or  to  a  condition  in  which  it 
may  be  utilized  for  its  purpose,  is  the  first  inventor,  and 
entitled  to  a  patent.  In  such  case  the  maxim  applies,  "Qui 
prior  est  in  tempore,  prior  est  in  jure."^^ 

4.  To  entitle  an   applicant   to  a  patent,   the   invention 

37  Curtis,  Pat.  §  106;  Bedford  v.  Hunt,  1  Mason,  301,  303;  Whit- 
ney V.  Emmett,  1  Baldw.  303 ;  Manny  v.  Jagger,  supra ;  Stanley 
V.  Whipple.  2  McLean,  35 ;  Wintermute  v.  Reddington,  1  Fish.  239 ; 
Page  V.  Ferry,  Id.  298. 

38  Reed  v.  Cutter,  Woodcock  v.  Parker,  Lowell  v.  Lewis  and 
Washburn  v.  Gould,  supra;  Cahoon  v.  Ring,  1  Chff.  592;  Teese  v. 
Phelps,  1  McAll.  48;  and  ElHthorp  v.  Robertson,  Parkhurst  v.  Kins- 
man, Goodyear  v.  Day,  supra. 

39  Citations  supra ;  Allen  v.  Hunter,  6  McLean,  303 ;  Cox  v.  Griggs, 
2  Fish.  174;  Many  v.  Sizer,  1  Id.  17;  Singer  v.  Walmsley,  Id.  558; 
Matthews  v.  Skates,  Id.  602 ;  Rich  v.  Lippincott,  2  Id.  1 ;  Johnson  v. 
Root,  Id.  291. 


§44.]  ESSENTIALS.  71 

must  not  have  been  "patented  or  described  in  any  printed 
publication  in  this  or  any  foreign  country,  before  his  inven- 
tion or  discovery  thereof,  and  not  in  public  use  or  on  sale 
for  more  than  two  years  prior  to  his  application,  unless  the 
same  is  proved  to  have  been  abandoned. "*'' 

The  language  of  the  statute  is,  be  it  noted,  "before  his 
invention  or  discovery,"  and  not  before  his  application  for 
a  patent.  It  may  well  happen  that  a  foreign  patent,  or 
the  publication  mentioned  in  the  statute,  ante-dates  the 
application,  but  not  the  invention;  the  former  of  which  the 
courts  say  is  not  sufficient  to  bar  or  invalidate  a  patent.  It 
is  also  held,  that  to  give  effect  to  the  "printed  publication" 
mentioned  in  the  statute,  the  description  therein  of  the  in- 
vention must  have  been  so  full,  clear  and  accurate,  that 
from  it  a  competent  mechanic,  instructed  in  the  business 
to  which  it  relates,  could  embody  and  utilize  its  principles 
in  a  practical  manufacture.*^ 

The  "two  years"  clause  in  the  statute  is  a  recognition 
and  embodiment  of  a  provision  first  introduced  into  our 
system  of  patent  law  by  an  act  of  Congress  passed  in  1839. 
Prior  to  that  act,  if  an  inventor  consented  to  the  public 
use  of  his  invention  at  any  time  before  application  for  a 
patent,  however  limited  such  use,  he  might  forfeit  his  right 
to  a  patent.  Now,  he  may  experiment  himself  in  private 
or  public,  and  permit  others  to  use  his  invention  during 
the  "two  years,"  without  losing  his  right,  provided  it  does 
not  appear  that  he  intended  to  abandon  his  invention,  or 
dedicate  it  to  the  public.*^ 

40  U.  S.  Rev.  Stat.   (2  Ed.),  §  4886. 

41  O'Reilly  v.  Morse,  15  How.  62;  Smith  v.  Ely,  Id.  137;  Parker 
V.  Stiles,  Id.  44;  Judson  v.  Cope,  1  Fish.  615;  Hays  v.  Sulsor,  Id. 
532;  Bartholomew  v.  Sawyer,  Id.  516;  White  v.  Allen,  2  Fish.  440. 

42McCormick  v.  Seymour,  2  Blatchf.  240,  16  How.  480,  and  19 
How.  96;  Root  v.  Ball,  4  McLean,  177,  Sanders  v.  Logan,  2  Fish. 
167;  Bell  v.  Daniels,  1  Id.  372;  Hovey  v.  Henry,  West.  Law  J.  153. 


72  VALID    PATENT.  [§45. 

§  45.  Mode  of  obtaining,  and  conditions,  of  a  valid  pat- 
ent.— If  the  invention  be  patentable  within  the  rules  now 
stated,  and  the  inventor  wishes  to  obtain  letters  patent 
therefor,  he  must  make  application  to  the  commissioner  of 
patents  in  the  manner  prescribed  by  statute.  The  applica- 
tion must  be  accompanied  by  a  written  description  of  the 
invention,  "and  of  the  manner  and  process  of  making,  con- 
structing, compounding,  and  using  it,  in  such  full,  clear, 
concise,  and  exact  terms  as  to  enable  any  person  skilled  in 
the  art  or  science  to  which  it  appertains,  or  with  which  it 
is  most  nearly  connected,  to  make,  construct,  compound, 
and  use  the  same ;  and  in  case  of  a  machine,  he  shall  explain 
the  principle  thereof,  and  the  best  mode  in  which  he  has 
contemplated  applying  that  principle,  so  as  to  distinguish 
it  from  other  inventions ;  and  he  shall  particularly  point 
out  and  distinctly  claim  the  part,  improvement,  or  com- 
bination which  he  claims  as  his  invention  or  discovery."*^ 

When  the  subject  of  the  invention  is  a  composition  of 
matter,  the  applicant,  when  required  by  the  commissioner, 
must  furnish  specimens  of  ingredients,  and  of  the  compo- 
sition, sufficient  in  quantity  for  the  purpose  of  experi- 
ment." 

In  cases  which  admit  of  representation  by  model,  the 
applicant,  if  required  by  the  commissioner,  shall  fiu-nish 
one  of  convenient  size  to  exhibit  advantageously  the  several 
parts  of  the  invention  or  discovery ;  and  when  the  nature 
of  the  case  admits  of  drawings,  the  applicant  must  furnish 
a  copy  to  be  filed  in  the  patent  office;  and  a  copy  of  these 
is  issued  with  the  patent  when  granted,  and  forms  part  of 
the  specification.*^ 

*3  U.  S.  Rev.  St.  (2  Ed.),  §  4888,  and  cases  there  cited. 
**U.  S.  Rev.  St.  (2  Ed.),  §  4890. 

*5  U.  S.  Rev.  St.  (2  Ed.),  §  4891 ;  Hogg  v.  Emmerson,  6  How.  437; 
McCormick  v.  Talcott,  20  Id.  409. 


§  45.]  VALID   PATENT.  73 

There  are  other  conditions  precedent  to  the  issuance  of 
letters  patent,  but  these  are  the  most  important.  Their 
purpose  is,  to  render  the  invention  available  to  the  public 
on  the  expiration  of  the  patent;  and  hence  the  requisite 
of  a  specification  from  which  alone  the  invention  could  be 
constructed  and  used.  The  benefit  to  the  public  constitutes 
the  principal  consideration  of  the  grant,  and  a  want  or 
failure  of  consideration  would  invalidate  the  patent.  It  is 
of  special  moment  that  the  inventor's  claim  be  intelligently 
and  carefully  stated  in  the  specification.  It  should  be  as 
broad  as  the  invention,  but  no  broader;  should  clearly  dis- 
criminate between  the  old  and  the  new ;  must  not  contain 
statements  intended  to  deceive  the  public ;  and  should  be 
free  from  ambiguity.  A  mistake  in  any  of  these  particu- 
lars would  be  dangerous,  and  might  vitiate  the  grant. 

An  applicant  with  a  patentable  invention,  or  one  that 
the  officials  at  the  patent  office  regard  as  patentable,  having 
complied  with  all  the  conditions  prescribed  by  the  govern- 
ment, is  entitled  to  letters  patent,  granting  to  him,  "his 
heirs  or  assigns  for  the  term  of  seventeen  years  the  exclus- 
ive right  to  make,  use,  and  vend  the  invention  or  discovery 
throughout  the  United  States,  and  the  Territories  there- 
of."*« 

Patents  thus  granted  are  prima  facie  valid;  but  in  an  ac- 
tion for  infringement  the  defendant  may  defeat  the  plain- 
tiff by  showing  the  invalidity  of  the  grant  on  either  of  the 
following  grounds  :'^'' 

First.  "That  for  the  purpose  of  deceiving  the  public  the 
description  and  specification  filed  by  the  patentee  in  the 


46  U.  S.  Rev.  St.  (2  Ed.)       §  4884,  and  cases  there  cited. 

*7  Curtis,  Pat.  §  472 ;  Alden  v.  Dewey,  1  Story,  336 ;  Woodworth 
V.  Sherman,  3  Id.  172;  Stearns  v.  Barrett,  1  Mason,  153;  Minter  v. 
Wells.  Webs.  Pat.  Cas.  129;  Phila.  &  Trenton  R.  Co.  v.  Stimpson, 
14  Pet.  458;  U.  S.  Rev.  St.    (2  Ed.),  §  4920,  and  cases  there  cited. 


74  OTHER  POINTS  OF  PATENTS.  [§46. 

patent  office  was  made  to  contain  less  than  the  whole  truth 
relative  to  his  invention  or  discovery,  or  more  than  is  nec- 
essary to  produce  the  desired  effect ;  or, 

Second.  "That  he  had  surreptitiously  or  unjustly  ob- 
tained the  patent  for  that  which  was  in  fact  invented  by 
another,  who  was  using  reasonable  diligence  in  adapting 
and  perfecting  the  same;  or, 

Third.  "That  it  had  been  patented  or  described  in  some 
printed  publication  prior  to  his  supposed  invention  or  dis- 
covery thereof ;  or, 

Fourth.  "That  he  was  not  the  original  and  first  inventor 
or  discoverer  of  any  material  or  substantial  part  of  the 
thing  patented;  or. 

Fifth.  That  it  had  been  in  public  use  or  on  sale  in  this 
country  for  more  than  two  years  before  his  application  for 
a  patent,  or  had  been  abandoned  to  the  public." 

Unfortunately  for  sanguine  inventors  many  patents  are 
issued  that  will  not  bear  the  test  of  a  thorough  judicial  in- 
vestigation. 

§  46.  Other  points  in  the  law  of  patents. — There  may 
be  granted  for  the  term  of  three  years  and  six  months,  for 
seven  years,  or  for  fourteen  years,  as  the  applicant  may 
elect,  patents  for  designs ;  and  all  the  regulations  and  pro- 
visions of  the  statutes  in  relation  to  obtaining  or  protect- 
ing patents  for  inventions  or  discoveries  will  apply  to 
patents  for  designs  so  far  as  the  same  may  be  applicable 
thereto  and  not  inconistent  with  other  provisions  of  the 
statutes.** 

A  patent  for  a  new  and  useful  improvement  of  an  "art, 
machine,  manufacture,  or  composition  of  matter,"  may  be 
granted   with  the  same   rights,   and   under  the   same  rules 

''SU.  S.  Rev.   (2  Ed.),  §§4929-4993. 


§46.]  OTHER  POINTS  OF  PATENTS.  75 

and  conditions  as  for  an  original;  but  if  the  original  be 
patented  the  patentee  of  the  improvement  does  not,  by  his 
grant,  acquire  any  right  in  the  former  patent ;  nor  does  the 
patentee  of  the  original,  by  virtue  of  his  patent,  acquire 
any  right  in  or  to  the  patented  improvement.*^ 

There  may,  also,  be  a  valid  patent  for  a  combination  of 
several  things,  whether  the  constituents  of  the  combination 
are,  or  are  not  separately  patented.  The  patent  be  it 
noted,  is  for  the  combination,  and  not  for  any  or  all  of  its 
elements  separately.  As  the  combination  patented  consists 
in  the  union  of  a  certain  number  of  things,  a  union  of  less 
than  the  prescribed  number  does  not  constitute  the  com- 
bination, and  is  not  protected  by  the  patent;  nor  does  the 
use  of  one  or  more  of  the  constituent  elements,  less  than 
the  whole  number  forming  the  combination,  constitute  an 
infringement  of  the  patent.  If  a  patent  for  any  of  the  ele- 
ments be  held  by  another,  the  patentee  of  the  combination 
does  not,  by  virtue  of  his  grant,  acquire  any  right  in  such 
other  patent;  nor  does  the  patentee  of  the  element,  by  vir- 
tue of  his  patent,  acquire  any  right  to  use  the  patented 
combination.^" 

A  patent  is  property,  and  the  owner  has  the  same  right 
to  dispose  of  it  as  have  the  owners  of  any  other  species  of 
personal  property.  He  may  assign  it  in  whole  or  in  part, 
for  all  or  a  portion  of  the  territory  covered  by  it,  thus 
giving  the  assignee  a  right  in  the  patent  itself;  or  he  may 


49  U.  S.  Rev.  St.  (2  Ed.),  §  4886;  Curtis,  Pat.  §§  3S,  42;  Rex  v. 
Arkwright,  Webs.  Pat.  Cas.  71,  72,  73;  Kneass  v.  The  Schuylkill 
Bank,  4  Wash.  9,  11 ;  Whitney  v.  Emmett,  1  Baldw.  303;  Pitts  v. 
Wemple,  6  McLean,  558;  Woodworth  v.  Rogers,  3  Woodb.  &  M.  135. 

50  1  Curtis,  Pat.  §§  111,  332;  Buck  v.  Hermance,  1  Blatchf.  398; 
Forbush  v.  Cook,  20  Law  R.  664;  Barrett  v.  Hall,  1  Mason,  447; 
Pitts  V.  Whitman,  2  Story,  609;  Lee  v.  Blandy,  2  Fish.  89;  Pitts 
V.  Wemple,  6  McLean,  558. 


76  COPYRIGHT.  [§47. 

grant  special  licenses  under  it,  giving  the  licensee  the  privi- 
lege of  making,  using,  or  selling  the  invention,  on  payment 
of  a  royalty. 

For  infringement  of  a  valid  patent  the  law  affords  ample 
remedies  in  the  Federal  Courts,  by  actions  at  law,  suits  in 
equity,  and  injunctions.^^ 

There  are  other  questions  connected  with  the  law  of  pa- 
tents ;  but  they  are  not  essential  to  a  general  view  of  the 
principles  involved  in  the  subject,  and  are  omitted  from 
this  discussion  for  the  same  reasons  stated  supra  under 
§43. 

A  few,  only,  of  the  numerous  authorities  on  the  subject 
of  patent  law  have  been  cited  in  the  outline  view  now  pre- 
sented. 

§  47.  Copyright.- -This  product  of  intellectual  labor 
furnishes  another  instance  of  title  to  personal  property  by 
original  acquisition.  "Copyright  is  the  exclusive  right  of 
the  owner  to  multiply  and  to  dispose  of  copies  of  an  in- 
tellectual production.  It  is  the  sole  right  to  the  copy  or  to 
copy  it."^^  Otherwise  stated  it  "is  the  exclusive  right  to 
the  owner  to  possess,  use,  and  dispose  of  intellectual  pro- 
ductions," which  have  the  attributes  of  property  "when 
embodied  in  written  or  spoken  language."^^ 

The  nature  and  source  of  this  right  have  been  the  subject 
of  much  learned  discussion ;  the  principal  question  being 
its  source,  whether  a  natural  right  recognized  and  protected 
by  the  common  law,  or  a  statutory  grant;  and  if  the  form- 
er, whether  the  right  is  lost  by  publication,  or  destroyed  by 
statute.^*     The  limited  scope  of  this  work  will  not  permit 

"U.  S.  Rev.  St.    (2  Ed.)   §§  4919,  4992;  Curtis,  Pat.  §§  494-499. 
62  Drone,  Copyr.  pp.  100,  101 ;  Williams.  Pers.  Prop.  p.  246. 
53  Drone,  Copyr.  pp.  97,  98. 
6*  Drone,  Copyr.  pp.  1,  2, 


§47.]  COPYRIGHT.  77 

a  presentation  of  the  arguments  and  authorities  pro  and 
con;  nor  is  such  a  presentation  requisite  to  a  correct  state- 
ment of  the  law  of  copyright  as  now  settled.  A  full  and 
very  able  historical  and  critical  discussion  of  the  subject 
may  be  found  in  "Drone  on  Copyright,"  to  which  refer- 
ence is  herein  freely  made  as  the  best  service  the  author 
could  render  his  readers. 

It  seems  quite  clear  that,  prior  to  the  statute  of  Anne  in 
1710,^^  the  common  law  right  was  unquestioned  in  Eng- 
land; and  that  for  half  a  century  thereafter  the  courts  of 
chancery  recognized  the  right,  holding  in  effect  that  it  was 
not  lost  by  publication,  or  destroyed  by  statute.^®  In  the 
case  of  Miller  v.  Taylor,  decided  by  the  Court  of  K.  B.  in 
1769,  the  question  was  thoroughly  discussed,  and  decided 
in  accordance  with  the  opinions  of  Lord  Mansfield  and 
Justices  Aston  and  Willes,  sustaining  the  common  law 
right,  Justice  Yates  dissenting.  But  five  years  later  the 
House  of  Lords  decided  the  question  adversely  to  the  Court 
of  K.  B.,  holding  that  the  common  law  right,  if  any  existed, 
could  not  be  exercised  beyond  the  time  limited  by  statute.^^ 

The  English  statute  was  copied  by  Congress  in  1790, 
and  the  Supreme  Court  of  the  United  States,  in  Wheaton 
V.  Petersl"^  decided  in  1834,  followed  the  English  case  of 
Donaldson  v.  Becket. 

It  is  now  the  settled  doctrine,  both  in  England  and  the 
United  States,  that  at  common  law  the  author  of  an  un- 
published literary  composition  has  an  absolute  property 
therein.    It  is  personal  property,  and  governed  by  the  same 


«G  8  Anne,  Ch.  19. 

58  Drone,  Copyr.  pp.  1,  54-82;  Millar  v.  Taylor,  4  Burr.  2303. 

57  Donaldson  v.  Becket,  4  Burr.  2408 ;  and  Drone  Copyr,  cited  supra. 

58  8  Pet.  591 ;  and  see  citations  supra. 


78  STATUTORY  RIGHT.  [§  48. 

rules  and  entitled  to  the  same  protection  as  other  personal 
property.  But  when  published  in  print  the  common  law 
right  is  lost  unless  protected  by  statute;  the  author  or  pro- 
prietor having  then  "no  exclusive  common  law  right  to 
multiply  copies  or  to  control  subsequent  issues  of  copies 
by  others,"  the  right  to  multiply  copies  to  the  exclusion 
of  others  being  the  creation  of  statute.^^ 

Practically,  in  this  country,  the  proprietary  right  after 
publication  namely,  the  exclusive  right  to  the  profits  of 
publication  rests  upon,  and  is  regulated  and  protected  by, 
the  acts  of  Congress. 

§  48.  How  to  secure  the  statutory  right. — The  same 
constitutional  provision  which  gives  to  Congress  jurisdic- 
tion of  the  subject  of  patents,  confers  upon  it  authority  to 
legislate  on  the  subject  of  copyright.®"  By  virtue  of  this 
authority  Congress  has  enacted®^  that :  "Any  citizen  of  the 
United  States  or  resident  therein,  who  shall  be  the  author, 
inventor,  designer,  or  proprietor  of  any  book,  map,  chart, 
dramatic  or  musical  composition,  engraving,  cut,  print,  or 
photograph  or  negative  thereof,  or  of  a  painting,  drawing, 
chromo,  statue,  statuary,  and  of  models  or  designs  intended 
to  be  perfected  as  works  of  the  fine  arts,  and  the  execu- 
tors, administrators,  or  assigns  of  any  such  person  shall, 
upon  complying  with  the  provisions  of  this  chapter,  have 
the  sole  liberty  of  printing,  reprinting,  publishing,  com- 
pleting,   copying,    executing,    finishing,    and    vending    the 

-"Drone,  Copyr.  pp.  101-104;  Donaldson  v.  Becket,  4  Burr.  2408; 
Colburn  v.  Simms,  2  Hare,  543 ;  Jefferys  v.  Boosey,  4  H.  L.  C.  962 ; 
Prince  Albert  v.  Strange,  2  De  G.  &  Sm.  652;  Wheaton  v.  Peters, 
8  Pet.  591 ;  Pulte  v.  Derby.  5  McLean,  328 ;  Palmer  v.  De  Witt,  47 
N.  Y.  532 ;  Rees  v.  Peltzer,  75  111.  475 ;  Boucicault  v.  Wood,  2  Biss.  34. 

60  U.  S.  Const,  art.  I,  §  8. 

61  U.  S.  Rev.  St.    (2  Ed.),  §  4952. 


§48.]  STATUTORY   RIGHT.  79 

same;  and,  in  the  case  of  a  dramatic  composition,  of  pub- 
licly performing  or  representing  it,  or  causing  it  to  be  per- 
formed or  represented  by  others.  And  authors  may  re- 
serve the  right  to  dramatize  or  to  translate  their  own 
works." 

To  entitle  a  person  to  a  copyright  he  must, 

1.  Before  publication,  "deliver  at  the  office  of  the  li- 
brarian of  Congress,  or  deposit  in  the  mail  addressed  to  the 
librarian  of  Congress,  at  Washington,  District  of  Colum- 
bia, a  printed  copy  of  the  title  of  the  book  or  other  article, 
or  a  description  of  the  painting,  drawing,  chromo,  statue, 
statuary,  or  a  model  or  design  of  a  work  of  the  fine  arts, 
for  which  he  desires  a  copyright."^^ 

2.  "Not  later  than  the  day  of  the  publication  thereof  in 
this  or  any  foreign  country,  deliver  at  the  office  of  the 
librarian  of  Congress,  at  Washington,  District  of  Colum- 
bia, two  copies  of  such  copyright  book  or  other  article;  or 
in  case  of  a  painting,  drawing,  statue,  statuary,  model,  or 
design  for  a  work  of  the  fine  arts,  a  photograph  of  the 
same."®^ 

3.  "The  proprietor  of  every  copyright  book  or  other 
article  shall  deliver  at  the  office  of  the  librarian  of   Con- 

.gress,  or  deposit  in  the  mail  addressed  to  the  librarian  of 
Congress  at  Washington,  District  of  Columbia,  not  later 
than  the  day  of  the  publication  thereof  in  this  or  any  for- 
eign country  two  complete  printed  copies  thereof,  of  the 
best  edition  issued,  or  description  or  photograph  of  such 
article  as  hereinbefore  required,  and  a  copy  of  every  sub- 
sequent edition  wherein  any  substantial  changes  shall  be 
made."«* 

62  U.  S.  Rev.  St.  (2  Ed.),  §  4956. 
6«  U.  S.  Rev.  St.  (2  Ed.),  §  4956. 
6*U.  S.  Rev.  St.  (2  Ed.),  §  4959. 


80  STATUTORY  RIGHT.  [§  48. 

For  a  failure  to  comply  with  either  of  the  last  two  pro- 
visions the  proprietor  of  the  copyright  is  liable  to  a  pen- 
alty 6i  twenty-five  dollars."^ 

4.  Pay  to  the  librarian  of  Congress  for  recording  the 
title  or  description  of  any  copyright  book  or  other  article, 
fifty  cents;  and  for  every  copy  under  seal  of  such  record 
actually  given  to  the  person  claiming  the  copyright,  or  his 
assigns,  fifty  cents.^® 

A  compliance  with  the  foregoing  conditions  secures  to 
the  author,  inventor,  or  designer,  a  copyright  for  the  term 
of  twenty-eight  years.®^ 

And,  tipon  recording  the  title  of  the  work,  or  description 
of  the  article  so  secured,  a  second  time,  and  complying 
with  all  other  regulations  in  regard  to  original  copyright, 
within  six  months  before  the  expiration  of  the  first  terra, 
the  author,  inventor,  or  designer,  if  he  be  still  living  and 
a  citizen  of  the  United  States  or  a  resident  therein,  or  his 
widow  or  children  if  he  be  dead,  shall  have  the  same  ex- 
clusive right  continued  for  the  further  term  of  fourteen 
years.  "And  such  person  shall,  within  two  months  from 
the  date  of  said  renewal,  cause  a  copy  of  the  record  thereof 
to  be  published  in  one  or  more  newspapers,  printed  in  the 
United  States,  for  the  space  of  four  weeks."®® 

Literary  property  in  unpublished  work,  being  personal, 
is  assignable,  and  governed  by  the  general  rules  applica- 
ble to  other  personal  property.®^  And  copyright  is  ex- 
pressly made  assignable  by  statute.^" 


«-  U.  S.  Rev.  St.  (2  Ed.),  §  4960  . 

66  U.  S.  Rev.  St.  (2  Ed.),  §  4958. 

67  U.  S.  Rev.  St.  (2  Ed.),  §  4953. 
68 U.  S.  Rev.  St.  (2  Ed.),  §  4954. 

69  Drone,  Copyr.  p.  104  et  scq.;  Palmer  v.  De  Witt,  47  N.  Y.  538; 
Parton  v.  Prang,  3  Cliflf.  537,  550;  Little  v.  Gould.  2  Blatchf.  165.  362. 

70  U.  S.  Rev.  St.  (2  Ed.),  §  4955;  Stat.  5  &  6  Vict.  c.  45,  s.  25. 


§49.]  ESSENTIALS  TO  COPYRIGHT.  81 

To  entitle  the  owner  to  maintain  an  action  for  infringe- 
ment of  his  copyright,  he  must  "give  notice  thereof  by  in- 
serting in  the  several  copies  of  every  edition  published,  on 
the  title  page  or  the  page  immediately  following  it,  if  it 
be  a  book;  or  if  a  map,  chart,  musical  composition,  print, 
cut,  engraving,  photograph,  painting,  drawing,  chromo, 
statue,  statuary,  or  model,  or  design  intended  to  be  per- 
fected and  completed  as  a  work  of  the  fine  arts,  by  inscrib- 
ing upon  some  portion  of  the  face  or  front  thereof,  or  on 
the  face  of  the  substance  on  which  the  same  shall  be 
mounted,  the  following  words,  'Entered  according  to  Act  of 

Congress,  in  the  year  ,  by  A.  B.,  in  the  office  of  the 

librarian  of  Congress,  at  Washington.'^^  Or,  'Copyright, 
,  by  A.  B.'  "" 

A  person  inserting  or  impressing  such  notice,  who  has 
not  obtained  a  copyright,  is  liable  to  a  penalty  of  one  hun- 
dred dollars.''^ 

§  49.  Essentials  to  copyright. — Legislation  is  silent  in 
regard  to  the  character  and  qualities  essential  to  copyright, 
and  the  law  must  be  sought  in  judicial  records.  On  several 
points  the  courts  have  spoken,  and  the  following  rules  may 
be  regarded  as  established: 

1.  Originality. — That  originality  is  essential  to  copyright 
admits  of  no  reasonable  doubt.  The  constitutional  au- 
thority to  legislate  on  the  subject  was  given  to  Congress 
for  the  purpose  of  promoting  "the  progress  of  science  and 
the  useful  arts,  by  securing  for  limited  times  to  authors 
and  inventors  the  exclusive  right  to  their  respective  writ- 
ings  and   discoveries."^*     Both   the   letter   and   the    spirit 

71  U.  S.  Rev.  St.  (2  Ed.),  §  4962. 

72  Drone,  Copyr.  p.  265,  n.  8. 

"  U.  S.  Rev.  St.  (2  Ed.),  §  4963. 

7*  U.  S.  Const,  art.  I,  §  8 ;  Drone,  Copyr.  pp.  198-208. 
6 


82  ESSENTIAIvS  TO   COPYRIGHT.  [§  49. 

of  this  provision  demand  originality  and  exclude  plagiar- 
ism; require  honesty  and  give  no  countenance  to  fraud, 
and  on  this  point  the  courts  are  in  accord.  But  what  con- 
stitutes originality,  or  when  that  requisite  is  wanting  in  a 
work,  it  is  not  always  easy  to  determine.  The  test  of 
originality  furnished  by  Mr.  Drone  is  the  following:  "In 
all  cases,  whatever  may  be  the  kind  or  character  of  the 
work  for  which  protection  is  claimed,  the  true  test  of 
originality  is  whether  the  production  is  the  result  of  in- 
dependent labor,  or  of  copying.  A  close  resemblance  be- 
tween two  publications  may  afford  strong  evidence  of  copy- 
ing; and  in  some  cases,  especially  when  the  similarity  is  not 
explained,  it  may  amount  to  conclusive  proof  of  piracy. 
But,  when  it  is  established  that  a  work  is  the  result  of 
honest  authorship,  its  likeness  to  another  publication  is  im- 
material."^^ 

2.  Merit  or  value. — That  a  production  should  possess 
some  merit  or  vlaue,  literary  or  other,  to  entitle  it  to  the 
privilege  and  protection  of  the  copyright  law  is  quite  ob- 
vious. There  are  quite  enough  objects  and  subjects  of 
weighty  human  interest  to  engage  the  genius  and  labor 
of  writers  and  compilers  of  every  grade,  without  adding  to 
the  catalogue  things  of  no  value  or  importance.  But  mere 
literary  merit  is  not  essential  to  copyright ;  it  is  enough 
that  a  production  may  contribute  to  useful  knowledge;  and 
the  courts  have  been  quite  liberal  in  this  direction,  ex- 
tending the  protection  of  the  copyright  law  to  compilations 
of  various  kinds,  annotations  consisting  of  common  ma- 
terials, collections  of  statistics,  calendars,  catalogues,  and 
other  compilations  involving  no  literary  ability.'" 

^5  Drone,  Copyr.  p.  208. 

76  Drone,  Copyr.  pp.  153,  208-212;  Folsom  v.  Marsh,  2  Story,  109: 
Scoville  V.   Tolland,   6  West.   Law  Jour.   84;    Collender   v.    Griffith, 


§  49.  ]  ESSENTIALS   TO  COPYRIGHT.  83 

3.  Seditious  or  libellous  publications. — The  law  univer- 
sally condemns  publications  which  are  seditious  and  libel- 
lous, and  cannot,  therefore,  consistently  extend  to  them  its 
protection.  Such  publications  are  justly  treated  as  out- 
laws. On  this  point  there  is  no  ground  for  contrariety  of 
judicial  opinion,  and  none  is  found  in  reported  cases.''^ 

4.  Immoral  productions. — These,  like  seditious  and  libel- 
lous publications,  are  under  the  condemnation  of  the  law, 
and  excluded  from  its  protection.  The  law  has  no  higher 
or  nobler  function  than  the  encouragement  and  protection 
of  public  and  private  morality.  This  truth  is  expressed  in 
the  spirit  of  Blackstone's  definition  of  municipal  law:  a 
rule  of  civil  conduct  prescribed  by  the  supreme  power  in 
the  state  commanding  what  is  right  and  prohibiting  what 
is  wrong."^*  This  definition  has  been  criticised  as  in  some 
respects  inaccurate;  but  it  may  well  be  questioned  whether 
the  criticisms  are  not  hypercritical.^^ 

5.  Blasphemous  publications. — From  the  principles  al- 
ready stated  it  is  clear  that  publications  of  a  blasphemous 
character  cannot  be  the  subjects  of  copyright,  and  are  not, 
of  course,  under  the  protection  of  copyright  law.  This  rule 
is  recognized  and  enforced  by  the  courts,  both  in  Great 
Britain    and    the    United    States.      But,    what    constitutes 

11  Blatchf.  211;  Lawrence  v.  Dana,  2  Am.  L.  T.  R.  N.  S.  423; 
Jarrold  v.  Houlston,  3  Kay  &  J.  708 ;  Pike  v.  Nicholas,  20  L.  T.  N.  S. 
906;  Gray  v.  Russell,  1  Story,  11;  Story's  Ex'rs  v.  Holcombe, 
4  McLean,  306 ;  Barfield  v.  Nicholson,  2  Sim.  &  St.  1 ;  Carey  v. 
Faden,  5  Ves.  24;  Matthewson  v.  Stockdale,  12  Ves.  270;  Scott  v. 
Stanford,  Law  Rep.  3  Eq.  718 ;  Lawrence  v.  Dana,  2  Am.  L.  T.  R. 
N.  S.  402. 

"Drone,   Copyr.  pp.   112-114,   181-185. 

78  1  Black.  Com.  p.  44. 

70  Drone,  Copyr.  pp.  112-114,  185-187;  Stockdale  v.  Onwhyn,  5 
Barn.  &  C.  173;  Martinetti  v.  Maguire,  1  Deady,  216;  Keene  v. 
Kimball,  16  Gray  (82  Mass.)  548;  Shook  v.  Daly,  49  How.  Pr.  366,  368. 


84  REMEDIES    FOR   INFRINGEMENT.  [§  50. 

blasphemy,  and  what  liberty  is  permitted  to  an  author  in 
treating  of  religious  subjects,  are  perplexing  questions  for 
judicial  determination.  The  decisions  on  the  subject  do 
not  furnish  a  satisfactory  solution  of  the  question;  and 
from  the  nature  of  the  case  it  seems  quite  impossible  to 
establish  a  definite  and  universal  rule  for  the  trial  and  test 
of  every  case  that  may  arise.  The  condition  of  society,  the 
character  of  the  government,  the  local  laws,  public  opinion, 
and  the  sentiments  of  the  tribunal,  will  to  a  greater  or  less 
extent  affect  the  decision  of  each  particular  case  presented 
for  adjudication.  While,  therefore,  there  is  unity  of  judi- 
cial opinion  regarding  the  principle  involved,  there  will 
necessarily  be  diversity  in  its  application,  even  where  the 
facts  are  substantially  the  same. 

From  the  liberal  character  of  the  government  of  the 
United  States,  and  the  freedom  of  religious  belief  and  wor- 
ship accorded  to  all  its  citizens,  it  may  reasonably  be  in- 
ferred that  large  liberty  of  discussion  and  publication  on 
moral  and  religious  subjects  would  be  permitted.  And 
such  is  the  fact,  as  appears  from  our  comparatively  meager 
judicial  records  involving  the  subject.  But  in  this  country, 
nevertheless,  there  are  limitations  to  the  liberty  of  speech 
and  the  press ;  and  there  is  such  a  thing  as  blasphemy 
known  to  law,  and  punishable  as  a  crime.^"' 

§  50.  Remedies  for  infringement. — Both  the  common 
law  and  statutory  rights  of  authors  and  proprietors  of 
brain  products  are  amply  protected  by  law.  Remedies  by 
actions  at  law,  suits  in  equity,  and  injunction,  are  avail- 
able for  any  invasion  of  these  rights. 


^^  Drone,  Copyr.  pp.  187-196 ;  People  v.  Ruggles,  3  Johns.  290 ; 
Commonwealth  v.  Kneeland,  20  Pick.  206,  220;  Updegraph  v.  Com- 
monwealth, 11  Serg.  &  R.  394;  1  Bishop,  Crim.  L.  §§  497,  498;  2  Id. 
§§  74-78. 


§  51.]  LETTERS.  85 

In  the  case  of  common  law  property,  if  the  owner's 
manuscript  be  published  in  print,  his  dramatic  or  musical 
composition  be  publicly  performed,  or  copies  of  his  work 
of  art  be  either  publicly  circulated  or  exhibited,  without 
his  consent,  his  rights  are  invaded;  and  in  such  case  the 
State  courts  are  open  to  the  injured  party  for  redress." 

For  a  violation  of  statutory  copyright  the  remedies,  legal 
and  equitable,  are  provided  by  the  statutes  which  confer 
the  right;  but  in  such  cases  the  remedies  must  be  sought 
in  the  Federal  courts.®^ 

§  51.  Letters  from  one  correspondent  to  another. — Let- 
ters addressed  from  one  correspondent  to  another  are 
classed  with  products  of  intellectual  labor,  and  possess  sub- 
stantially the  same  proprietary  qualities  as  other  unpub- 
lished manuscripts. 

When  written  and  sent,  to  whom  do  they  belong,  the 
writer  or  the  receiverf  Or,  more  accurately,  in  whom  is 
the  property  of  the  writing?  This  question  has  elicited 
considerable  discussion  by  the  courts;  but  the  doctrine  may 
now  be  regarded  as  settled,  that  the  writer  has  a  literary 
property  in  his  letters,  which  is  not  lost  by  their  trans- 
mission to  the  receiver.^^  From  this  doctrine  it  follows, 
as  a  general  rule,  that  the  receiver  has  no  right  to  publish 

81  Drone,  Copyr.  pp.  107-110;  Palmer  v.  De  Witt,  47  N.  Y.  532. 

82 U.  S.  Rev.  St.  (2  Ed.),  §§  4963-4970;  Drone,  Copyr.  pp.  544- 
552,  496  et  seq. 

83  Drone,  Copyr,  p.  127 ;  Duke  of  Queensbury  v.  Shebbear,  2  Eden, 
329 ;  Thompson  v.  Stanhope,  Amb.  732 ;  Pope  v.  Curl,  2  Atk.  342 ; 
Granard  v.  Dunkin,  1  Ball  &  B.  207 ;  Perceval  v.  Phipps,  2  Ves.  &  B. 
19;  How  V.  Gunn,  32  Beav.  462;  Dennis  v.  Leclerc,  1  Mart. 
(Orleans  T.)  297;  United  States  v.  Tanner,  6  McLean,  128;  Woolsey 
v.  Judd,  4  Duer,  379;  Eyre  v.  Higbee,  22  How.  Pr.  198;  Grigsby  v. 
Breckinridge,  2  Bush   (Ky.)  480. 


86  I^ETTERS.  [§  51. 

the  letters  without  the  consent  of  the  writer ;  and  such  pub- 
lication will  be  enjoined  by  a  court  of  equity.^* 

It  has  been  judicially  held  that  a  court  of  equity  will 
interpose  by  injunction  for  the  reason  that  the  unauthor- 
ized publication  of  private  letters  is  an  act  of  bad  faith 
tending  to  a  disturbance  of  the  public  peace,  a  violation  of 
the  obligations  of  "social  ethics,"  and  subversive  of  that 
free  interchange  of  opinions  and  sentiments  essential  to  a 
well-conditioned  state  of  society.^^  While  such  publication 
may  be  justly  obnoxious  to  all  these  criticisms,  it  is  not, 
according  to  the  prevailing  doctrine,  for  any  or  all  of  these 
that  a  court  of  equity  exercises  its  restraining  power,  but 
solely  on  the  ground  of  protection  to  the  literary  property 
of  the  writer.®® 

There  are  exceptions  to  the  rule  that  the  writer  is  the 
owner  of  the  property  in  the  letters  written  by  him.  For 
example,  the  letters  of  an  employee  written  in  and  concern- 
ing the  business  of  his  employer.®^  So,  also,  official  letters 
written  by  officers  of  the  government  belong  to  the  govern- 
ment, with  the  right  to  publish  them  or  to  refrain  from 
so  doing,  at  will,  and  to  restrain  their  unauthorized  pub- 
lication ;  and  this  on  the  ground  of  public  policy.®* 

Does  the  property  of  the  writer  depend  at  all  upon  the 
literary  merit  of  his  letters?  The  affirmative  of  this  ques- 
tion has  been  held  in  some  reported  cases.®*  But  the  weight 
of  authority  decides  the  question  in  the  negative;  and  rea- 

^*  See  cases  cited  under  last  paragraph. 

®^  Folson  V.  Marsh,  2  Story,  111. 

*^  Gee  V.  Pritchard,  2  Swans.  413;  Woolsey  v.  Judd,  4  Duer,  384; 
Grigsby  v.  Breckenridge,  2  Bush  (Ky.)  486;  Perceval  v.  Phipps, 
2  Ves.  &  B.  24 ;  Whitmore  v.  Scovell,  3  Edw.  Ch.  320. 

^^  Howard  v.  Gunn,  32  Beav.  462. 

^*  Drone,  Copyr.  p.  132;  Folsom  v.  Marsh,  2  Story,  113. 

89  Perceval  v.  Phipps,  2  Ves.  &  B.  28 ;  Whitmore  v.  Scovell,  3  Edw. 
Ch.  515;  Hoyt  v.  Mackenzie,  3  Barb.  Ch.  320. 


§52.]  IvECTURES.  87 

son  approves  the  decision.""  Theoretically,  and  in  con- 
templation of  the  law,  every  letter  has  literary  merit  in 
which  a  property  exists ;  albeit  the  quantum  may  be  mi- 
croscopic, and  undiscoverable  by  ordinary  perception. 
Practically,  however,  the  wisdom  of  this  rule  is  apparent 
in  view  of  the  difficulty  of  drawing  the  line  between  the 
different  degrees  of  literary  merit.  The  opposite  rule 
would  render  the  administration  of  the  law  on  this  subject 
embarrassing,  uncertain,  and  unequal  as  no  standard  of 
literary  merit  could  be  prescribed  that  would  suit  all  tri- 
bunals, and  measure  all  cases. 

What  rights,  if  any,  has  the  receiver  in  a  letter  ad- 
dressed to  him?  So  far  as  this  question  has  been  passed 
upon  by  the  courts,  the  doctrine  seems  to  be  established 
that,  while  he  has  no  literary  property  in  the  letter,  he  has 
a  corporeal  property  in  the  material  on  which  it  is  writ- 
ten."^ He  has  the  right  to  retain  possession  of  it,  and  is 
not  boimd  to  preserve  it  for  the  benefit  of  the  writer.'^ 

It  has  been  held  in  several  cases  that  the  receiver  may 
publisTi  a  letter  when  it  becomes  necessary  for  the  purpose 
of  vindicating  his  reputation  from  false  charges  or  unjust 
imputations  made  by  the  writer.^^  But  Mr.  Drone  dis- 
sents emphatically  from  this  holding,  and  his  reasoning  on 
the  point  is  cogent.^* 

§  52.  Lectures. — Manifestly  lectures  are  a  product  of 
brain-work;  and,  on  principle  and  judicial  authority,  their 

^oWoolsey  v.  Judd,  4  Duer,  379;  Grigsby  v.  Breckinridge,  2  Bush 
(Ky.)  480;  Drone,  Copyr.  pp.  132-135. 

81  Drone,  Copyr.  pp.  135,  136;  Pope  v.  Curl,  2  Atk.  342;  Oliver 
V.  Oliver,  11  C.  B.  N.  S.  139;  Eyre  v.  Higbee,  22  How.  Pr.  198; 
Grigsby  v.  Breckenridge,  supra. 

82  See  cases  cited  last,  supra. 

»3  Perceval  v.  Phipps,  2  Ves.  &  B.  19;  Folsom  v.  Marsh,  2  Story, 
111 ;  Woolsey  v.  Judd,  4  Duer,  379,  407. 
»*  Drone,  Copyr.  pp.  138,  139. 


88.  LECTURES.  [§  52. 

creator  has  a  common-law  proprietary  right  in  them  be- 
fore publication,  on  the  same  ground  that  supports  an 
author's  right  in  other  unpublished  manuscripts.®^  On 
first  view  it  may  be  thought  that  a  lecture  orally  delivered 
cannot  be  regarded  as  a  manuscript  and  entitled  to  pro- 
tection as  such ;  but  the  courts  will  assume  that  the  lecturer 
has  a  written  composition,  either  in  full  or  in  skeleton, 
from  which  he  speaks  memoriter,  and  is,  therefore,  the 
author  of  a  manuscript  represented  in  the  oral  delivery. 

But,  will  the  public  reading,  or  the  oral  delivery,  of  a 
lecture  by  the  author  operate  as  an  abandonment  of  his 
exclusive  proprietary  right  therein,  and  deprive  him  of 
legal  protection  from  piratical  appropriation  of  his  brain- 
product?  If  so,  the  right  would  be  of  very  little,  if  any, 
value  to  the  author,  for  most  lectures  are  prepared  for 
public  delivery.  Both  reason  and  the  weight  of  judicial 
authority  concur  in  the  rule,  that  a  public  reading  or  oral 
delivery  of  a  lecture  is  not  to  be  regarded  as  in  itself  a 
relinquishment  of  title  by  the  author,  or  as  operating  to 
divest  him  of  his  property  in  the  manuscript.  Where  per- 
sons are  admitted,  as  pupils  or  otherwise,  to  hear  public 
lectures,  it  is  upon  the  implied  confidence  and  contract 
that  they  will  not  use  any  means  to  injure  or  take  away 
the  exclusive  right  of  the  lecturer  in  his  own  lectiires. 
They  may  take  notes  for  their  own  information,  but  may 
not  publish  them  for  profit.^® 

In  the  analagous  case  of  playright,  the  question  of  pub- 
lication has  undergone  much  discussion  by  the  courts,  and 
their  reasoning  and  opinions,  applicable  to  lectures  as  well, 
sustain  the  doctrine  just  stated.     An  interesting  and  in- 

**^  Drone,  Copyr.  p.  107. 

96  Drone,  Copyr.  pp.  118,  119,  554-584;  2  Kent.  Com.  pp.  378,  379; 
Bartlett  v.  Crittenden,  4  McLean,  300,  5  Id.  32. 


§  53.]  TRADE-MARKS.  & 

structive  history  of  this  discussion  will  be  found  in  Drone 
on  Copyright.®^ 

In  England  the  sole  privilege  of  publishing  their  lectures 
is  secured  by  authors  by  statute,®*  which  affords  protection 
against  piracy.  But  "lectures  delivered  in  any  university 
or  public  school  or  college,  or  on  any  public  foundation, 
or  by  any  individual  in  virtue  of  or  according  to  any  gift, 
endowment  or  foundation,"  are  excepted  from  the  opera- 
tion of  this  act. 

In  the  United  States  a  remedy  is  given  by  statute  for 
the  unauthorized  publication  of  a  manuscript.®^ 

For  a  violation  of  the  author's  right  he  may  maintain 
an  action  at  law;  and,  in  a  proper  case,  a  court  of  equity 
will  interpose  by  injunction.^ 

The  remedies  are  available  in  a  state  court;  and  a  citizen 
or  resident  of  the  United  States  may  obtain  redress  in  a 
Federal  court.  ^ 

§  53.  Trade-marks. — Property  in  trade-marks  is  gen- 
erally and  properly  classed  under  the  first  general  mode 
of  acquiring  title  to  personal  property,  that  of  original 
acquisition. 

A  trade-mark  has  been  well  defined  as  "the  name,  sym- 
bol, figure,  letter,  form  or  device,  adopted  and  used  by 
a  manufacturer,  or  merchant,  in  order  to  designate  the 
goods  that  he  manufactures,  or  sells,  and  distinguish  them 
from  those  manufactured  or  sold  by  another;  to  the  end 

»7  Pages  554-584;  and  see  Palmer  v.  De  Witt,  47  N.  Y.  532; 
Thompkins  v.  Halleck,  133  Mass.  32,  43  Am.  Rep.  480. 

»8  5  &  6  Will.  IV.  c.  65 ;  Drone,  Copyr.  p.  658 ;  Goode,  Pers.  Prop, 
pp.  217,  218. 

09  U.  S.  Rev.  St.   (2  Ed.),  §  4967;  Drone,  Copyr.  pp.  124-127. 

lU.  S.  Rev.  St.  (2  Ed.),  §  4967;  Drone,  Copyr.  p.  124;  Boucicault 
V.  Hart,  13  Blatchf.  47. 

2  Drone,  Copyr.  pp.  545,  546;   Palmer  v.  De  Witt,  47  N.  Y.  532. 


90  A   COMMON   I.AW   RIGHT.  [§  54. 

that  they  may  be  known  in  the  market  as  his,  and  thus 
enable  him  to  secure  such  profits  as  result  from  a  reputa- 
tion for  superior  skill,  industry  or  enterprise."' 

A  trade  name  is  to  be  distinguished  from  a  trade-mark. 
A  trade-mark  exists  because  affixed  to  property;  a  trade 
name  is  allied  to  the  good  will  of  a  business.  The  trade 
name  of  a  firm,  corporation  or  publication,  although  not  a 
trade-mark,  will  be  protected  like  a  trade-mark. 

§  54.  A  common  law  light. — A  trade-mark  is  the  crea- 
ture of  common  law,  and  not  like  the  subject  of  patents 
and  copyright,  dependent  upon  statute  for  existence  or 
protection.  The  two  species  of  property,  especially  trade- 
marks and  copyright,  are  sometimes  confounded;  but,  while 
having  some  features  in  common,  they  are  essentially  dif- 
ferent in  character.  Copyright  property,  as  we  have  seen,* 
is  the  exclusive  right  of  multiplying  and  vending  copies 
of  original  productions  of  the  mind,  and  "is  a  property  in 
the  thing  itself,  the  words,  letters,  designs  or  symbols,  which 
are  the  signs  of  things,  and  the  forms  and  embodiment  of 
thought."  While  trade-marks  are  property,  "not  in  the 
words,  letters,  designs  and  symbols,  as  things,  as  signs 
of  thought,  a  production  of  the  mind;  but  imply  and 
solely  as  a  means  of  designating  things;  the  things  thus  des- 
ignated being  the  production  of  human  skill,  or  industry, 

^  Upton,  Trade-marks,  p.  9 ;  and  see  2  Bouv.  L.  Diet.  "Trade- 
marks;" Newman  v.  Alvord,  51  N.  Y.  189;  Hostetter  v.  Adams,  20 
Blatch.  C.  C.  326 ;  Lawrence  Manuf .  Co.  v.  Lowell  Hosiery  Mills, 
129  Mass.  325,  37  Am.  Rep.  362;  Hier  v.  Abraham,  82  N.  Y.  519; 
Thornton  v.  Crowley,  47  N.  Y.  Super.  Ct.  (15  J.  &  S.)  527;  Am. 
Solid  Leather  Button  Co.  v.  Anthony  Cowell  Co.,  2  New  Engl. 
Rep.  630;  Ferguson  v.  Davol  Mills,  7  Phila.  253,  2  Brewst.  314; 
Boardman  v.  Meriden  Brittania  Co.,  35  Conn.  402;  Munro  v.  Tousey, 
129  N.  Y.  38. 

*  Supra,  §  47. 


§  55.]  WHAT   MAY    CONSTITUTE   A   TRADE-MARK.  91 

whether  of  the  mind  or  the  hand,  or  a  combination  of 
both."^ 

A  very  stringent  and  carefully  drawn  statute  on  the  sub- 
ject of  trade-marks,  was  passed  by  Congress  in  1870  and 
amended  in  1876.^  But  this  law  was  held  to  be  uncon- 
stitutional by  the  Federal  courts.''  The  provision  of  the 
United  States  Constitution  for  securing  "to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings 
and  discoveries,"  on  which  the  law  of  patents  and  copy- 
right is  based,  does  not  apply  to  trade-marks.* 

Based  upon  the  commerce  clause  in  the  constitution,  at 
least  one  of  the  acts  of  Congress  regulating  trade-marks 
has  been  declared  constitutional,  the  act  of  March  31,  1881. 

The  act  provides  that  the  owners  of  existing  trade-marks 
used  in  commerce  with  foreign  nations  or  with  Indian 
tribes  only,  may  register  such  trade-mark  in  the  present 
office  by  complying  with  the  act.® 

There  are  also  provisions  in  the  laws  of  Congress  lock- 
ing to  the  protection  of  domestic  manufacturers  from  the 
copying,  or  simulation,  of  their  names  or  trade-mark  on 
imported  merchandise.^" 

§  55.  What  may  constitute  a  trade-mark. — By  the  defi- 
nition supra,^^  a  trade-mark  may  consist  of  a  name,  sym- 

^  Upton,  Trade-marks,  pp.  14,  15 ;  Dr.  Jaeger's  Sanitary  Woolen 
System  Co.  v.  Le  Boutillier,  47  Hun,  521 ;  Skinner  v.  Oakes,  10 
Mo.  App.  45;  Atlantic  Milling  Co.  v.  Robinson,  20  Fed.  Rep.  217; 
Shaver  v.  Shaver,  54  Iowa,  208,  37  Am.  Rep.  194. 

6U.  S.  Rev.  St.   (2  Ed.),  §§  4937^947. 

■^  Leidersdorf  v.  Flint,  8  Biss.  C.  C.  327 ;  affirmed  on  appeal  to 
the  United  States  Supreme  Court. 

8  United  States  v.  Steffens,  100  U.  S.  82;  and  see  United  States 
V.  Roche,  1  McCrary,  C.  C.  385. 

*  S.  C.  V.  Seymour,  153  U.  S.  82;  Brennan  v.  Emery  Dry  Goods 
Co.,  99  Fed.  Rep.  971. 

10  U.  S.  Rev.  St.  (2  Ed.)  §  2496;  U.  S.  St.  1882-83,  §  2496;  U.  S. 
St.  1889-90,  §  7. 

"  §  53. 


92  BY  WHOM  ACQUIRED.  [§  56. 

bol,  figure,  letter,  form  or  device.  But  it  should  be  noticed 
that  a  name  or  word  which  expresses  only  the  quality, 
kind,  texture,  composition,  or  utility  of  an  article,  will  not 
be  protected  as  a  trade-mark.  The  use  of  such  names  and 
words  is  common,  and  equally  free  to  all  and  no  one  per- 
son, therefore,  can  monopolize  their  exclusive  use  for  his 
own  benefit.^^ 

The  same  rule  applies  to  marks,  symbols,  letters,  and 
figures,  which  are  used  only  to  denote  the  quality,  grade, 
appropriate  name,  or  the  peculiar  mode  or  process  of  man- 
ufacture of  the  article  to  which  they  are  applied.^^ 

But  it  has  been  held  that  marks,  such  as  arbitrary  com- 
binations of  figures,  indicating  style  or  quality,  which  also 
indicate  origin,  may  be  the  subject  of  a  trade-mark.^* 

§  56.  By  wham  acquired. — Trade-marks  are  a  species 
of  personal  property,^^  and  may  be  acquired  by  any  per- 
son  capable   of   acquiring  and  possessing   other   kinds   of 


i2Corwin  v.  Daly,  7  Bos.  222;  Wolfe  v.  Goulard,  18  How.  Pr.  64; 
Fetridge  v.  Wells,  13  Id.  385;  Evans  v.  Von  Laer,  12  Fed.  Rep.  153; 
Colgau  V.  Danheiser,  35  Id.  ISO;  Runneford  Chemical  Works  v.  Muth, 
Id.  524;  Smith  v.  Walker,  57  Mich.  456;  Hornbottle  v.  Kinney,  52 
N.  Y.  Super.  Ct.  41;  Hostetter  v.  Adams,  20  Blatchf.  C.  C.  326; 
Fleischerman  v.  Newman,  16  N.  Y.  State  Rep.  794. 

13  Royal  Baking  Powder  Co.  v.  Sherrell,  93  N.  Y.  331 ;  Amoskeag 
Manuf.  Co.  v.  Trainer,  101  U.  S.  51 ;  Same  v.  Spear,  2  Sandf.  Super. 
Ct.  599. 

1*  Am.  Solid  Leather  Button  Co.  v.  Anthony  Crowell  &  Co.,  2  New 
Eng.  Rep.  630;  Boardman  v.  Meriden  Britannia  Co.,  35  Conn.  402; 
Lawrence  Co.  v.  Lowell  Mills,  129  Mass.  325 ;  Gillott  v.  Esterbrook, 
48  N.  Y.  374. 

1^  Bradley  v.  Norton,  TiZ  Conn.  157;  Huwer  v.  Dannenhoffer,  82 
N.  Y.  499,  502;  The  Leather  Cloth  Co.  v.  The  Am.  Leather  Cloth 
Co.,  De  Gex,  J.  &  S.  137,  11  House  of  Lords  Cas.  523;  The  Glen  & 
Hale  Manuf.  Co.  v.  Hall,  61  N.  Y.  226. 


§  57.]  FREEDOM    FROM    FRAUD.  93 

personal  property,  an  alien  as  well  as  a  citizen.^'  But  the 
exclusive  right  can  exist  only  in  a  person  who,  in  some 
form,  and  to  some  extent,  possesses  an  exclusive  right  in 
the  property  to  which  it  is  appended.  It  is  not  an  ab- 
stract right  to  the  exclusive  use  of  a  certain  mark,  dis- 
associated from  the  article  property  which  its  use  is  to 
designate,  and  distinguish  from  other  articles  of  the  same 
general  character.^^ 

The  question  has  been  under  judicial  consideration, 
whether  a  drawing  or  picture  of  an  article  may  be  used 
as  a  trade-mark.  It  would  not  be  safe  to  affirm  that  this 
question  has  been  definitely  settled.  The  courts  of  this 
country,  so  far  as  they  have  spoken  on  this  point,  and  the 
English  courts,  do  not  seem  to  be  in  accord ;  the  former  in- 
clining to  the  affirmative,^*  and  the  latter  to  the  negative, 
of  the  question.^® 

§  57.  Freedom  from  fraud. — The  right  of  a  party  to 
a  trade-mark  will  not  be  recognized  by  the  courts  where 
he  is  guilty  of  fraud  or  deception  in  its  acquisition  or  use. 
Courts  of  equity  exercise  jurisdiction  in  trade-mark  cases 
for  the  two-fold  purpose:  First,  to  stimulate  and  reward 
skill  and  honesty   in  trade   and   manufactures ;    and,    sec- 

i«  Taylor  v.  Carpenter,  3  Story,  458 ;  The  Collins  Co.  v.  Brown, 
3  Kay  &  J.  423;  Same  v.  Co  wen,  Id.  428;  Coats  v.  Holbrook,  2 
Sandf.  Ch.  586;  Coffeen  v.  Brunton,  4  McLean,  516. 

17  Atlantic  Milling  Co.  v.  Robinson,  20  Fed.  Rep.  217;  Skinner 
V.  Oakes,  10  Mo.  App.  45 ;  Ferguson  v.  Davol  Mills,  7  Phila.  253, 
2  Brewst.  214;  Congress  &  Empire  Spring  Co.  v.  High  Rock  Con- 
gress Spring  Co.,  45  N.  Y.  291;  Cotton  v.  Gillard,  44  L.  J.  (N.  S.) 
Ch.  90 ;  Samuel  v.  Berger,  4  Abb.  Pr.  Rep.  88. 

18  7n  re  Pratt,  10  U.  S.  Pat.  Gaz.  866;  Tucker  Manuf.  Co.  v. 
Boyington,  9  Id.  455;  Ex  parte  Halliday,  16  Id.  506;  Ex  parte  Smith, 
Id.  179.   And  see  Popham  v.  Cole,  66  N.  Y.  69. 

18  James  v.  Parry,  55  L.  T.  Rep.  N.  S.  415,  35  Albany  L.  J.   12. 


94  HOW   ACQUIRED.  [§  58. 

ondly,  to  protect  the  public  against  fraud  and  imposition 
by  unscrupulous  dealers,  who  seek  to  pass  off  spurious  and 
inferior  commodities  for  the  genuine.  Hence  the  just  and 
wise  rule  that,  no  person  can  establish  an  exclusive  right  to 
a  trade-mark  acquired  dishonestly,  or  used  for  fraudulent 
purposes.^" 

§  58.  How  acquired. — Property  in  a  trade-mark  is  pri- 
marily acquired  by  adoption  and  use  by  the  manufacturer, 
or  other  person  possessed  of  an  exclusive  right  in  the  thing 
to  which  it  is  applied.^^  No  duration  of  time  as  to  the  use 
is  requisite  to  create  the  property  right.^^ 

To  give  an  exclusive  right,  the  use  of  the  trade-mark 
by  the  person  adopting  and  claiming  it  must  be  new,  hav- 
ing never  previously  been  used  in  appliance  to  a  like  art- 
icle,-^ 

Property  in  a  trade-mark  may,  also,  be  acquired  by  a 
voluntary  transfer  from  the  person  whose  title  originated 
in  adoption  and  use.^*    But,  as  we  have  seen  supra,  ^^  the 

20Fetridge  v.  Wells,  13  How.  Pr.  Rep.  385;  Partridge  v.  Menck, 
How.  App.  Cas.  547;  Perry  v.  Truefitt,  6  Beav.  66;  Fowle  v.  Spear, 
7  Penn.  L.  J.  176;  Hobbs  v.  Francis,  19  How.  Pr.  Rep.  567;  Siegert 
V.  Abbott,  61  Md.  276,  48  Am.  Rep.  101 ;  Buckland  v.  Rice,  40  Ohio  St. 
526 ;  Manhattan  Medicine  Co.  v.  Wood,  108  U.  S.  218 ;  Landreth  v. 
Landreth,  22  Fed.  Rep.  41;  De  Kuyper  v.  Witteman,  23  Id.  871. 

21  Upton,  Trade-marks,  pp.  46,  47 ;  Deeringer  v.  Plate,  29  Cal.  292 ; 
Filley  v.  Fassett,  44  Mo.  168 ;  Candee  v.  Deere,  54  111.  439 ;  Bradbury 
V.  Beeton,  39  Law  J.  Rep.  Ch.   (N.  S.)  57. 

22  Hall  V.  Barrows,  8  L.  T.  (N.  S.)  227,  on  appeal,  9  L.  T.  (N.  S.) 
561 ;  Brown,  Trade-marks,  §  252. 

23  Van  Beil  v.  Prescott,  82  N.  Y.  630 ;  Derringer  v.  Plate,  29.  Cal. 
292;  Upton  Trade-marks,  pp.  46,  47. 

2*  Hoxie  V.  Chaney,  143  Mass.  592,  58  Am.  Rep.  149 ;  Morgan  v. 
Rogers,  19  Fed.  Rep.  596 ;  Hegeman  &  Co.  v.  Hegeman,  8  Daly,  1 ; 
Matter  of  Swezy,  62  How.  215 ;  Walton  v.  Crowley,  3  Blatchf.  C.  C. 
440 ;  The  Leather  Cloth  Co.  v.  The  Am.  Leather  Cloth  Co.,  De  Gex, 


§  59.]  INFRINGEMENT.  95 

abstract  trade-mark  is  not  assignable  when  disconnected 
with  the  thing  designated  by  it;  the  right  either  to  manu- 
facture or  sell  the  merchandise  to  which  the  mark  has  been 
applied  must  go  with  it,  or  no  title  will  vest  in  the  as- 
signee; the  original  proprietor  can  transfer  no  greater 
right  than  that  possessed  by  himself,  which  is,  simply,  the 
exclusive  right  to  use  the  mark  to  designate,  and  distin- 
guish from  articles  of  the  same  general  character,  the  mer- 
chandise which  he  manufactures  or  sells.^® 

So,  also,  property  in  a  trade-mark  will  pass  by  opera- 
tion of  law.  On  the  decease,  or  bankruptcy,  of  the  pro- 
prietor of  a  trade-mark,  the  property  in  it  passes  to  the 
party  lawfully  succeeding  to  the  control  of  the  business  in 
which  the  mark  was  used. 

Unless  provision  is  made  by  statute,  a  trade-mark  is  not 
subject  to  execution.^'' 

§  59.  Infringement. — The  violation  of  a  trade-mark 
consists  in  the  unauthorized  application  of  it,  or  of  a  color- 
able imitation  of  it,  to  the  goods  manufactured  or  sold  by 
the  wrong-doer,  under  the  fraudulent  representation  that 
they  are  the  genuine  merchandise  of  the  proprietor,  where- 
by pur<j:hasers  and  consumers  may  be  deceived,  and  the 
owner  of  the  trade-mark  damnified.-* 

J.  &  S.  137,  11  House  of  Lords  Cases,  523;  The  Glen  &  Hall  Manuf. 
Co.  V.  Hall,  61  N.  Y.  226,  230 ;  Huwer  v.  Dennenhoffer,  82  Id.  499,  502. 

25  §  56. 

26  Samuel  v.  Burger,  4  Abb.  Pr.  Rep.  88 ;  Atlantic  Milling  Co.  v. 
Robinson,  20  Fed.  Rep.  217. 

2T  Huwer  v.  Dannenhoffer,  82  N.  Y.  499,  502;  Matter  of  Swezy, 
62  How.  215;  Croft  v.  Day,  7  Beav.  84;  Upton,  Trade-marks,  p.  80 
et  scq. ;  Prince  Manuf.  Co.  v.  Prince  Metallic  Paint  Co.,  20  N.  Y. 
Supp.  462. 

28  Newman  v.  Alvord,  49  Barb.  588 ;  Enoch  Morgan  Sons'  Co. 
V.  Schwackhoefer,  55  How.  Pr.  2,7,  5  Abb.  N.  C.  265;  N.  Y.  Cab. 


96  REMEDIES   FOR   INFRINGEMENT,  [§  60. 

From  the  definition  of  an  infringement,  and  the  au- 
thorities cited,  it  will  appear  that  a  colorable  imitation  cal- 
culated to  deceive  the  purchaser  without  a  close  inspection, 
will  constitute  a  violation  of  the  proprietor's  right,  and  en- 
title him  to  legal  and  equitable  relief.^^  But  this  rule  does 
not  include  a  case  in  which  the  simulation  would  not  de- 
ceive a  person  of  ordinary  prudence ;  the  maxim  in  such 
case  applying,  "Vigilantihus  non  dormientibus  leges  siib- 
veniunt."^^ 

§  60.  Remedies  for  infringement. — For  a  violation  of 
trade-mark  property  the  courts  of  law,  and  of  equity,  are 
both  open  to  the  injured  party  for  redress.  In  the  former, 
he  may  have  an  action  for  damages;  in  the  latter,  a  suit 
for  an  injunction,  and  a  decree  for  pecuniary  satisfaction. 
The  extraordinary  restraining  power  by  injunction  belongs 
to  a  court  of  equity;  an  action  primarily  for  damages,  to  a 
court  of  law.  By  a  familiar  rule,  however  when  a  court  of 
equity  obtains  jurisdiction  of  a  matter  for  any  purpose,  it 
will  exercise  its  powers  for  all  purposes  connected  there- 
with, and  grant  full  relief  to  injured  parties.  Under  this 
rule  in  a  suit  praying  for  an  injunction  a  court  of  equity 
obtains  jurisdiction  of  the  case,  and,  having  full  control 
and  power,  will  decree  damages  when  such  redress  is  de- 
manded by  justice  and  equity.  The  court  has  power  also 
in  such  case  to  compel  the  defendant  to  render   full   and 

Co.  V.  Mooney,  15  Abb.  N.  C.  152;  Farmers'  Loan  &  Trust  Co.  v. 
Farmers'  Loan  &  Trust  Co.  of  Kansas,  21  Id.  104;  Godillott  v. 
Harris,  81   N.  Y.  263;  Robertson  v.  Berry,  50  Md.  591. 

2»  Vacuum  Oil  Co.  v.  Buffalo  Lubricating  Oil  Co.,  26  Weekly  Dig. 
570;  New  Haven  Pat.  Rolling  Spring  Co.  v.  Farren,  51  Conn.  324; 
Robertson  v.  Berry,  50  Md.  591. 

30  Popham  v.  Cole,  66  N.  Y.  69 ;  Partridge  v.  Menck,  2  Sandf .  Ch. 
622,  on  appeal,  1  How.  App.  Cas.  548 ;  Colladay  v.  Baird,  4  Phila. 
139;  Woolam  v.  Ratcliff,  1  Hem.  &  M.  259. 


§60.]  REMEDIES   FOR   INFRINGEMENT.  97 

true  account,  under  oath,  of  all  sales  by  him  of  merchandise 
bearing  the  pirated  trade-mark,  thus  facilitating  the  ad- 
ministration of  justice  between  the  parties.^^ 

31  Upton  Trade-marks,  pp.  233,  234;  Knott  v.  Morgan,  2  Keen,  213; 
Millington  v.  Fox,  3  Mylne  &  C.  338 ;  Taylor  v.  Carpenter,  2  Sandf . 
Ch.  611,  612;  Bell  v.  Locke,  8  Paige,  275;  Thompson  v.  Winchester, 
19  Pick.  214 ;  Jurgenson  v.  Alexander,  24  How.  Pr.  Re.  269 ;  Stone- 
breaker  V.  Stonebreaker,  33  Md.  252;  Shaver  v.  Shaver,  54  Iowa, 
208,  37  Am.  Rep.  194;  Singer  Manuf.  Co.  v.  Kimball,  10  Scottish 
L.  R.  173. 

7. 


98  FORFEITURE,  [§  62. 


CHAPTER  VIII. 

THE  SECOND  GENERAL  MODE  OF  ACQUIRING  TITLE  TO 

PERSONAL  PROPERTY— TRANSFER  BY 

ACT  OF  LAW. 


§  6L  Special  modes  included  in  this  division. 

62-65.  Forfeiture. 

66-67.  Succession. 

68-69.  Judgment. 

70.  Intestacy. 

71-74.  Insolvency. 

75-77.  Marriage. 

§  61.  The  special  modes  included. — Transfer  of  title  to 
personal  property  by  act  of  law  embraces:  I.  Forfeiture; 
II.  Succession;  III.  Judgment;  IV.  Intestacy;  V.  Insol- 
vency; and  VI.  Marriage. 

1.  Forfeiture. 

§  62.  Definition  and  examples. — Forfeiture  is  a  loss  of 
title  to  his  goods  and  chattels  by  the  owner,  as  a  punish- 
ment for  crime,  a  penalty  for  the  violation  of  law,  or  a 
breach  of  contract,  and  a  transfer  thereof  to  the  govern- 
ment, or  other  corporation,  or  to  a  private  person  as  the 
case  may  be.^ 

As  examples,  may  be  mentioned  forfeiture  of  all  the 
goods  and  chattels  of  the  offender  for  treason,  and  other 
high  crimes ;  forfeiture  of  goods  for  evasion  of  the  reve- 
nue laws,  or  other  statutes.   State  of  national;   forfeiture 

12  Kent,  Com.  p.  385;  1  Black.  Com.  (Cooley's  Ed.),  p.  298; 
2  Id.  p.  408  et  seq.,  420,  421 ;  4  Id.  pp.  382,  387 ;  1  Bouv.  L.  Diet. 
"Forfeiture;"  And.  L.  Diet.  "Forfeiture." 


§64.]  FORFEITURE.  99 

under  the  police  power  of  the  state  for  the  illegal  use  of 
property ;  and  forfeiture  of  the  shares  of  a  stockholder  in 
a  corporation  for  a  failure  to  pay  assessments  when  due.^ 

§  63.  England,  and  United  States. — Anciently  in  Eng- 
land there  were  numerous  statutory  forfeitures  for  crime; 
but  modern  legislation  has  largely  reduced  the  number,  and 
greatly  softened  the  rigor  of  the  ancient  law. 

In  the  United  States,  forfeiture  for  crime  is  of  rare  oc- 
currence. Legislation,  both  national  and  State,  is  generally 
in  harmony  with  the  spirit  of  the  Federal  Constitution, 
which  provides  that  "no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attained."^  By  act  of  Congress  it  is  pro- 
vided that,  "no  conviction  or  judgment  shall  work  cor- 
ruption of  blood,  or  any  forfeiture  of  estate."* 

In  most,  if  not  all,  of  the  States  of  the  Union  forfeiture 
is  regulated  by  organic  or  statutory  law,  or  both.  In  the 
absence  of  such  regulation,  forfeiture  of  property  for  trea- 
son and  felony  still  exists,  it  being  part  of  the  common  law 
inherited  from  England.^ 

§  64.  When  title  passes. — As  a  general  rule,  the  incur- 
rence of  the  forfeiture  does  not  ipso  facto  transfer  the  for- 
feited property  to  the  state,  or  the  party  to  whom  it  goes; 
but  a  final  judgment  of  a  court  of  competent  jurisdiction 
is  requisite  to  pass  the  title.® 

2  Citations  supra ;  and  Chit.  Cr.  L.  pp.  730-735 ;  1  Bishop,  Cr.  L. 
§§  944,  824,  835;  Weeks  v.  Silver  Islet,  etc.,  Co.,  55  N.  Y.  Super. 
Ct.  (J.  &.  S.)  1,  16;  Pendergast  v.  Turton,  1  Young  &  Coll.  (N.  R.) 
98;  Story  Eq.  Jur.  §  1325;  Cathcart  v.  Fire  Department,  etc.,  26 
N.  Y.  529. 

3  U.  S.  Const,  art.  3,  §  3. 

*U.  S.  Rev.  St.  (2  Ed.),  §  5326. 

•  2  Kent,  Com.  p.  386. 

•  1  Bishop,  Cr.  L.  §  967 ;  Fire  Department  of  New  York  v.  Kip,. 


100  SUCCESSION.  [§  66. 

But  the  forfeiture,  when  decreed,  relates  back  to  the  time 
when  it  was  incurred.'^ 

§  65.  Forfeiture  odious. — In  the  administration  of  stat- 
utory law,  it  is  important  to  observe  the  distinction  be- 
tween things  odious  and  things  favored,  as  affecting  the 
rule  of  construction  applicable  to  each.  Statutes  creating 
the  former  are  subject  to  strict  construction,  while  the  lat- 
ter kind  are  construed  liberally.  Forfeitures  and  penalties 
belong  to  the  odious  class,  and  fall  under  the  rule  of  strict 
construction.®  The  rule  of  construction  applicable  may  be 
decisive  of  a  case. 


II.  Siiccession. 

§  66.  Definition,  and  kinds. — Defined  in  a  general  way, 
succession  is  the  transfer  of  title  or  rights  from  one  per- 
son, or  set  of  persons  to  another,  either  by  act  of  the  parties 
or  by  operation  of  law,  whereby  the  latter  becomes  the  suc- 
cessor of  the  former  in  respect  of  such  title  or  rights. 

There  are  several  kinds  or  modes  of  succession  by  opera- 
tion of  law,  without  the  act  of  the  parties,  classified  as  fol- 
lows :  first,  the  succession  to  the  government  of  the  personal 
and  real  estate  of  an  intestate,  when  he  has  no  heirs,  or 
next  of  kin  to  claim  it;  second,  what  is  sometimes  called 

10  Wend.  266;  King  v.  Earbury,  Fort.  37;  Wells  v.  Martine,  2  Bay, 
20 ;  Skinner  v.  Perot,  1  Ashm.  57. 

7  Bulkly  V.  Orms,  Brayt.  (Vt.)  124;  Clark  v.  Protection  Ins.  Co., 
1  Story,  109;  The  Mears,  8  Cranch,  417;  United  States  v.  Seventy-Six 
Thousand  One  Hundred  and  Twenty-Five  Cigars,  18  Fed.  Rep.  147. 

8  Bishop,  Cont.  (2  Enl.  Ed.),  §  417;  Bishop,  Written  Laws,  §  192 
et  seq.;  Taylor  v.  Patterson,  9  La.  An.  251 ;  Smith  v.  Spooner,  3  Pick. 
229;  Sewal  v.  Jones,  9  Id.  412;  Sullivan  v.  Park,  2,2,  Me.  438;  The 
State  v.  Stevenson,  2  Baily,  334,  335;  United  States  v.  Burdett, 
9  Pet.  682. 


§67.]  SUCCESSION.  101 

legal  succession,  which  governs  the  distribution  of  decedent 
estates,  and  which  is  treated,  past,  under  the  head  of  In- 
testacy;® and,  third,  common  law  succession,  "the  mode  by 
which  one  set  of  persons,  members  of  a  corporation  aggre- 
gate, acquire  the  rights  of  another  set  which  preceded 
them." 

Testamentary  succession  is  sometimes  erroneously  classed 
with  succession  by  act  of  law,  instead  of  by  act  of  the  par- 
ties, to  which  class  it  belongs,  as  the  devisee  and  legatee 
take  title  direct  from  the  testator.  This  kind  of  succession 
is  discussed  post,^^  under  the  head,  "Title  by  will  or  testa- 
ment." 

The  third  kind  only,  that  of  common-law  succession,  will 
be  considered  in  this  connection. 

§  67.  Commoii-law  succession. — This  mode  of  acquiring 
titles  relates  mainly  to  corporations  aggregate,  which  were 
treated  siipra}^  According  to  Blackstone,  the  acquisition 
of  property  in  chattels  by  succession  "is,  in  strictness  of 
law,  only  applicable  to  corporations  aggregate,"  "in  which 
one  set  of  men  may,  by  succeeding  another  set,  acquire  a 
property  in  all  the  goods,  movables,  and  other  chattels  of 
the  corporation."^^  But  as  we  have  seen,  the  term  "succes- 
sion" may  have  a  broader  scope. 

Chief  Justice  Marshall,  in  the  celebrated  Dartmouth 
College  case,^*  speaking  of  the  properties  of  corporations 

»§  70. 

1°  Bouv.  Law.  Diet.  "Succession ;"  2  Kent,  Com.  p.  387 ;  2  Black. 
Com.  pp.  430,  431;  1  Id.  pp.  468,  469,  475;  And.  L.  Diet.  "Succes- 
sion." 

"  §  90,  etc. 

12  §  90,  etc. 

13  2  Black.  Com.  pp.  430,  431. 

1*  Dartmouth  College  v.  Woodward,  4  Wheat.  636.  And  see  1  Black. 
Com.  pp.  469,  470,  471,  475;  2  Kent,  Com.  p.  273;  1  Potter,  Corp. 
§§  2,  3,  4. 


102  JUDGMENT.  [§68. 

aggregate,  says :  "They  enable  a  corporation  to  manage 
its  own  affairs,  and  to  hold  property  without  the  perplex- 
ing intricacies,  the  hazardous  and  endless  necessity  of  per- 
petual conveyances  for  the  purpose  of  transmitting  it  from 
hand  to  hand.  It  is  chiefly  for  the  purpose  of  clothing 
bodies  of  men  in  succession,  with  these  quahties  and  ca- 
pacities, that  corporations  were  invented,  and  are  in  use. 
By  these  means  a  perpetual  succession  of  individuals  is 
capable  of  acting  for  the  promotion  of  the  particular  ob- 
ject, like  one  immortal  being." 

In  sole  corporations  a  distinction  is  made  in  respect  of 
succession.  When  a  sole  corporation  is  the  representative 
of  a  number  of  persons,  it  has  the  same  capacity  as  a  cor- 
poration aggregate  to  take  chattels  in  succession ;  but  in 
case  of  sole  corporation  which  represent  only  one  person, 
chattel  interests  do  not  pass  in  succession.^"* 

Sole  corporations  proper  are  rare  in  the  United  States, 
but  there  are  quasi  corporations  possessing  some  of  the 
properties,  and  subserving  some  of  the  purposes,  of  sole 
corporations.^^ 


III.  Judgment. 

§  68.  Definition. — A  judgment  is  the  conclusion  of  law, 
upon  the  facts  of  a  case  judicially  ascertained,  pronounced 
by  a  competent  tribunal  having  jurisdiction  in  the  prem- 
ises, in  a  matter  regularly  before  it  for  adjudication. 

Judgments  in  actions  ex  contractu  are  classed  with  con- 
tracts  of  record   by   some   text-writers   and   courts  ;^^   but 

"  2  Black.  Com.  pp.  431,  432 ;  Kent,  Com.  pp.  273,  274 ;  1  Potter, 
Corp.  §  18. 

1^  Morawetz,  Corp.  vol.  1,  §  2. 

^'^  1  Pars.  Cont.  (7  Ed.),  p.  8;  Mete.  Cont.  p.  4;  Anson,  Cont.  pp.  8, 
37,  38;  Wald's  Pollock  Cont.  pp.  145,  146;  Morse  v.  Tappan,  3  Gray, 


§69.]  JUDGMENT.  103 

other  authorities  dissent,  holding  that  no  judgment  has  the 
essential  elements  of  a  contract;^*  and  the  weight  of  au- 
thority seems  to  be  on  this  side  of  the  question. 

But,  whatever  may  be  the  rule  respecting  judgments  in 
actions  ex  contractu,  there  is  no  good  reason  for  classing 
judgments  ex  delicto  with  contracts;^®  and  it  is  with  these 
mainly,  that  we  are  concerned  in  this  connection. 

§  69.  Judgments  which  transfer  title. — In  actions  of 
trover,  or  of  de  bonis  asportatis,  if  the  plaintiff  recovers 
judgment,  and  obtains  satisfaction,  the  title  to  the  prop- 
erty in  question  is  transferred  to  the  defendant;  the  dam- 
ages recovered  being  regarded  as  the  price  of  the  chattel 
so  transferred  by  operation  of  law.^*' 

It  is  a  mooted  question  whether  the  recovery  of  judg- 
ment alone,  without  satisfaction,  will  transfer  the  title  to 
the  property  in  question  to  the  defendant.  There  are 
cases,  English  and  American,  holding  the  affirmative  of  the 
question  on,  at  least,  plausible  grounds ;  ^^  on  the  other  hand, 
there  are  numerous  cases  holding  the  negative,  the  judgment 
being  regarded  as  a  security  merely,  leaving  the  title  to  the 

411 ;  Gebhard  v.  Garnier,  12  Bush.  321 ;  Stuart  v.  Landers,  16  Cal.  372. 

18  Bishop,  Cont.  (2  Enl.  Ed.)  §  141;  O'Brien  v.  Young,  95  N.  Y. 
428 ;  Louisiana  v.  Mayor,  109  U.  S.  285 ;  Rae  v.  Hulbert,  17  111.  572, 
580;  Burnes  v.  Simpson,  9  Kan.  658;  Larrabee  v.  Baldwin,  35  Cal. 
155,  168;  McConn  v.  The  N.  Y.  C.  and  H.  R.  R.  Co.,  50  N.  Y.  176; 
Biddleson  v.  Whytel,  3  Burrows,  1545-1548. 

"Bishop,  Cont.   (Enl.  Ed.),  §  141. 

20  2  Kent,  Com.  pp.  387,  388 ;  2  Black.  Com.  pp.  437,  438 ;  Bishop. 
Non-Cont.  Law,  §  399. 

21  Brown  v.  Wootton,  Cro.  Jac.  73 ;  Adams  v.  Broughton,  Strange, 
1078 ;  Rogers  v.  Moore,  1  Rice,  60 ;  White  v.  Philbrick,  5  Greenl.  147 ; 
Carlile  v.  Burley,  3  Id.  250;  Floyd  v.  Browne,  1  Rawle,  125;  Marsh 
V.  Pier,  4  Id.  273;  Hunt  v.  Bates,  7  R.  I.  217. 


104  JUDGMENT,  [§  69. 

property  in  the  plaintiff  until  payment  of  the  price  repre- 
sented by  the  judgment.^^ 

It  seems  but  reasonable  and  just  that  the  owner  should 
not  lose  title  to- his  chattel  against  his  will,  by  the  tortious 
act  of  another,  without  receiving  compensation  for  it;  and 
equally  reasonable  and  just  that  the  wrong-doer  should 
not  profit  by  his  tort  without  first  paying  the  judgment 
price. 

There  are  some  other  cases,  generally  assigned  to  this 
mode  of  acquiring  title  to  personal  property,  of  which 
notice  should  be  taken.  They  differ  somewhat  from  the 
cases  now  considered,  and  do  not  in  all  respects  strictly 
fall  within  the  same  doctrine,  yet  for  all  practical  pur- 
poses they  may  properly  be  placed  in  the  same  category. 

1.  Cases  of  penalties  given  by  statute,  which  may  be  re- 
covered by  any  party  who  will  sue  for  the  same;  and  qui 
tarn  actions,  in  which  an  informer  may  sue  for  the  penalty 
in  his  own  name,  as  well  on  behalf  of  himself  as  the  state. 
In  this  class  of  cases  no  particular  person  has  any  right  in, 
or  claim  upon,  the  penal  sum  before  action  brought.  He 
who  first  brings  the  action  and  obtains  judgment,  acquires 
title  to  it." 

2.  Damages  awarded  to  a  man  as  a  compensation  for  an 
injury  sustained;  as  for  a  battery,  for  false  imprisonment, 
for  slander  or  trespass,  and,  generally,  for  injuries  result- 
ing from  torts  for  which  the  damages  recoverable  are  un- 

22  Curtis  V.  Groat,  6  Johns.  168 ;  Osterhout  v.  Roberts,  8  Cow.  43 ; 
Sanderson  v.  Caldwell,  2  Aiken,  195 ;  Elliott  v.  Porter,  5  Dana,  299 ; 
Campbell  v.  Phelps,  1  Pick.  62;  Sharp  v.  Gray,  5  B.  Monr.  4;  Hep- 
burn V.  Sewell,  5  Har.  and  J.  211;  Spivey  v.  Morris,  18  Ala.  254; 
Drake  v.  Mitchell,  3  East,  258;  Cooper  v.  Shepherd,  3  C.  B.  266; 
Goff  V.  Craven,  34  Hun,  150 ;  Thurst  v.  West,  31  N.  Y.  215. 

23  2  Black.  Com.  p.  437 ;  Bishop,  Written  Laws,  §  250  d. 
2*  2  Black.  Com.  p.  438. 


§70.]  INTESTACY.  105 

certain.  In  this  class  of  cases,  the  damages,  when  fixed  by 
judgment,  become  the  property  of  the  plaintiff,  transferred 
to  him  from  the  defendant  by  operation  of  law.^* 

IV.  Intestacy. 

§  70.  Definition,  history,  and  incidents. — Intestacy  is 
the  state  or  condition  of  a  person  dying  without  leaving  a 
valid  will.^^  Applied  to  the  subject  in  hand,  it  signifies 
the  state  of  one  dying  and  leaving  testable  personal  prop- 
erty undisposed  of  by  will. 

The  intestate's  title  to  his  property  dies  with  him;  and 
where  the  title  rests  intermediate  his  death  and  the  ap- 
pointment of  an  administrator,  is  a  question  which  has 
caused  some  confusion  of  thought.  It  does  not  vest  in  his 
heirs  at  law  for  they  take  only  decedent's  real  estate;  it 
does  not  pass  directly  to  the  next  of  kin,  for  they  take  no 
legal  title  to  his  personal  property;  neither  their  title  nor 
that  of  any  other  person  can  accrue  in  other  mode  than 
through  the  medium  of  an  administrator.^® 

A  brief  historical  sketch  of  the  law  of  intestacy  will 
relieve  the  question  from  difficulty.  We  have  seen^^  that 
occupancy  is  the  first  known  method  of  acquiring  title  to 
personal  property ;  that  the  right  of  property  in  external 
things  in  the  aggregate  belongs  to  the  human  race  collec- 
tively; that  he  who  first  appropriated  a  thing  to  his  own 
use  acquired  a  property  therein,  and  an  exclusive  right 
thereto,  which  property  and  right  continued  so  long  as  the 

25Bouv.  L.  Diet.  "Intestacy;"  2  Black.  Com.  p.  494. 

28  Ferrie  v.  The  Public  Administrator,  3  Bradf .  Surr.  Rep.  249,  262 ; 
Beattie  v.  Abercrombie,  18  Ala.  9;  Sneed  v.  Hooper,  Cooke  (Tenn.), 
200;  Beecher  v.  Buckingham,  18  Conn.  110;  State  v.  Moore,  18  Mo. 
App.  406;  Palmer  v.  Palmer,  55  Mich.  293. 

^T  Supra.  §  ZZ. 


106  INTESTACY.  [§  70. 

exclusive  use  or  occupancy  continued,  and  no  longer.  That 
when  possession  was  abandoned  the  right  was  lost,  and  any 
other  person  might  appropriate  the  thing  to  his  own  use, 
with  the  like  right  and  limitation;  and  so  on  in  succession 
indefinitely.  The  abandonment  of  the  thing  by  the  pos- 
sessor relegated  it  to  the  common  stock  belonging  to  man- 
kind as  a  whole.  In  other  words,  the  abandoned  thing  be- 
came a  part  of  the  unappropriated  body  of  property  known 
as  bona  vacantia;  and  the  death  of  the  possessor  was  re- 
garded as  an  abandonment  having  this  effect. 

Referring  especially  to  England,  in  the  progress  of 
events  bona  vacantia  became  the  property  of  the  king.  He 
seized  upon  such  goods  as  parens  patriae  and  general  trustee 
of  the  kingdom. 

Originally  the  king  exercised  this  prerogative  by  his 
own  ministers  of  justice;  but  later  it  was  granted  as  a 
franchise  to  many  of  his  lords  of  manors,  and  others  who 
thereunder  acquired  a  right  to  grant  administration  to  their 
intestate  tenants  and  suitors  in  their  own  courts  baron,  and 
other  courts. 

Subsequently  the  crown  granted  this  right  to  the  popish 
clergy.  The  ordinary — i.  e.  one  who  had  ordinary  or  im- 
mediate jurisdiction  in  matters  ecclesiastical,  an  ecclesiasti- 
cal judge — might  seize  and  keep  the  goods  of  an  intestate, 
keep  them  without  wasting,  give,  alien,  or  sell  them  at  will, 
and  dispose  of  the  proceeds  in  pios  usus. 

But  the  clerical  garb  was  not  proof  against  temptation, 
and  after  a  while  the  clergy  came  to  the  pious  conclusion 
that  they  were  the  rightful  beneficiaries,  and  appropriated 
to  themselves  most  of  the  estates  thus  left  them  in  trust, 
without  even  paying  the  debts  of  the  deceased. 

Finally,  Parliament  interposed  and  placed  administra- 
tion in  the  hands  of  the  "nearest  and  most  lawful  friends 


§  70.]  INTESTACY.  107 

of  the  deceased;"  and  by  a  subsequent  act,  it  was  granted 
either  to  the  widow,  or  next  of  kin,  or  both.^®  But  the 
ordinary  still  had  jurisdiction  in  the  administration  of  es- 
tates, and  granted  letters,  the  administrators  being  regarded 
as  his  officers. 

This  is  the  origin,  and  history  in  brief,  of  administration 
in  England.  It  will  be  seen  that  the  administration  of 
the  property  of  an  intestate  is  based  upon  the  doctrine 
that  his  death  was  an  abandonment  of  title,  and  that  his 
personality  thereupon  became  bona  vacantia,  passing  to  the 
sovereign  as  the  parens  patriae,  or  general  trustee  of  the 
realm.  The  legal  title  vests  in  the  crown;  the  equitable 
title  in  decendent's  creditors  and  next  of  kin. 

The  same  doctrine  prevails  in  the  American  States,  sub- 
stituting "government"  for  "king"  or  "crown,"  and,  as 
a  necessary  sequence,  intermediate  the  death  of  intestate 
and  the  issuance  of  letters  of  administration,  the  legal  title 
to  his  personal  property  vests  in  the  government  in  trust.^' 

There  are  cases,  however,  holding  that  after  the  death  of 
the  intestate  his  personal  property  may  be  considered  in 
abeyance  till  administration  granted,  and  is  then  vested  in 
the  administrator  by  relation  to  the  time  of  decedent's 
death.^''  But  to  this  view  there  are  several  objections. 
First,  it  is  historically  illogical ;  secondly,  it  is  in  conflict 
with  the  axiomatic  principle  that  in  the  matter  of  title  to 

28  Statutes,  31  Edw.  Ill,  c.  11;  and  21  Hen.  VIII,  c.  5. 

29  2  Black  Com.  pp.  3,  11,  259,  401,  494-496;  Pom.  Munic.  L.  §  787; 
Aspinwall  v.  The  King's  Proctor,  Curt  Ecc.  246;  Hensloe's  Case, 
9  Rep.  37,  38;  Public  Administrator  v.  Hughes,  1,  Bradf.  Surr.  Rep. 
125,  128,  129 ;  Ferrie  v.  The  Public  Administrator,  3  Id.  249,  262,  263. 

30  Jewett  V.  Smith,  12  Mass.  309 ;  Clapp  v.  Stoughton,  10  Pick.  463 ; 
Lawrence  v.  Wright,  23  Id.  128;  Brackett  v.  Hoitt,  20  N.  H.  257; 
McVaughters  v.  Elder,  2  Brev.  (S.  C),  307;  Miller  v.  Reigne,  2  Hill 
(S.  C),  592. 


108  INSOI<VENCY.  [§  71. 

property  the  law  abhors  a  vacuum,  that  the  title  must  be 
somewhere;  and,  thirdly,  it  leaves  the  personal  effects  of 
intestate  without  lawful  custody  and  protection  until  the 
grant  of  administration,  which  is  often  delayed  for  a  con- 
siderable length  of  time.  True,  on  the  appointment  of  an 
administrator,  the  legal  title  passes  to  him  by  operation  of 
law,  and  relates  back  to  the  death  of  the  intestate  for  the 
purposes  of  securing  the  estate,  and  protecting  persons 
dealing  with  parties  entitled  to  administration.  The  ad- 
ministrator may  maintain  an  action  for  an  unredressed 
tortious  injury  to,  or  conversation  of,  the  property  of  the 
estate  prior  to  his  appointment.^^  Yet  the  want  of  present 
adequate  protection  intermediate  his  appointment  and  the 
death  of  the  intestate,  might  result  in  irreparable  injury 
to  the  estate. 

While  the  legal  title  to  the  intestate's  personal  property 
is  in  the  administrator  as  trustee,  so  that  for  the  purposes 
of  administration  he  may  sell  the  same  and  give  a  good 
title  to  the  purchaser,  the  next  of  kin  have  a  vested  inter- 
est in  the  surplus  of  the  estate,  after  the  payment  of  the 
debts.32 

The  appointment,  powers,  and  duties  of  an  administra- 
tor, and  the  distribution  of  intestate's  personal  property, 
are  generally  regulated  by  statute;  and  the  rules  of  the 
common  law  are  more  or  less  modified  in  most,  if  not  all,  of 
the  American  States. 

V.  Insolvency. 

§  71.  Meaning  of  the  terms  insolvency,  and  bank- 
ruptcy.— This   mode  of  acquiring  title  to  personal  prop- 

2^  Citations  supra,  and  Dayt.   Surr.  p.  234 ;   Valentine  v.  Jackson, 

9  Wend.  302 ;  Babcock  v.  Booth,  2  Hill,  181 ;  Vroom  v.  Van  Horne^ 

10  Paige,  549. 

32  Ferrie  v.  The  Public  Administrator,  3  Bradf .  Surr.  Rept.  249,  262 ; 
Pom.  Munic.  L.  §  798. 


%72.]  INSOLVENCY.  109 

erty  embraces  bankruptcy,  which  is  included  in  the  generic 
term  insolvency. 

Writers  do  not  agree  in  respect  to  the  derivation  of  the 
word  bankruptcy.  The  weight  of  authority  favors  the 
view  that  it  is  derived  from  the  words  hancas,  which  means 
the  table  or  counter  of  a  tradesman,  and  ruphts,  broken, 
signifying  the  broken  bench  or  counter,  and  denoting  one 
whose  shop  or  place  is  broken  or  gone.  This  view  is  rend- 
ered probable  from  the  custom  said  to  have  once  existed 
among  the  bankers  of  Italy,  who  carried  on  the  business  in 
public  places,  seated  on  forms,  with  benches  on  which  to 
count  their  cash.  When  one  became  insolvent,  his  bench 
was  broken,  either  as  a  mark  of  reproach,  or  to  make  room 
for  another.^^ 

The  word  insolvent  means  not  solvent.  In  law  it  ex- 
presses the  state  of  a  person  who  is  unable,  for  any  cause, 
to  pay  his  debts.  Or,  what  is  perhaps  a  better  definition, 
the  state  of  one  who  is  unable  to  pay  his  debts  as  they  fall 
due  in  the  usual  course  of  trade  or  business.^* 


§  72.  Distinction  between  bankrupt,  and  insolvent, 
laws. — Originally  there  were  several  points  of  difference 
between  bankrupt  and  insolvent  laws,  and  such  distinctions 
still  exist  where  they  are  not  modified  or  obliterated  by 
statute. 

1.  Bankrupt  laws  apply  only  to  trades  or  merchants;  while 
insolvent  laws  apply  to  all  indiscriminately. 


33  2  Black.  Com.  p.  472;  Bouv.  L.  Diet.  "Bankruptcy;"  3  Pars. 
Cont.  (7  Ed.),  p.  423,  n.  (b)  ;  1  Beaw,  Lex.  Merc.  371. 

3*  Bouv.  L.  Diet.  "Insolvency ;"  Ferry  v.  The  Bank  of  Central 
New  York,  15  How.  Pr.  Rep.  445,  451 ;  Thompson  v.  Thompson, 
4  Cush.  134;  Brower  v.  Harbeck,  9  N.  Y.  589;  Lee  v.  Kilburn,  3 
Gray,  594;  Hazleton  v.  Allen,  3  Allen,  114. 


110  INSOLVENCY.  [§73. 

2.  Bankrupt  laws  discharge  absolutely  the  obligation  of 
the  honest  debtor;  while  insolvent  laws  discharge  only  the 
person  of  the  debtor,  leaving  his  future  acquisitions  still 
liable  for  his  debts. 

3.  Formerly,  while  all  persons  owing  debts  could  take 
the  benefit  of  an  insolvent  law,  none  who  were  not  trad- 
ers, or  quasi  traders  could  be  forced  into  bankruptcy  against 
their  will,  at  the  suit  of  others. 

But  these  distinctions  are  of  very  little  pratical  im- 
portance at  present,  in  this  country,  having  been  quite 
generally,  obliterated  by  the  legislation  both  of  the  Federal 
Government  and  the  States.^^ 

§  73.  General  purposes,  and  effect,  of  insolvent  laws. — 

We  have  seen  that  one  of  the  limitations  to  the  abso- 
lute ownership  of  personal  property,  is  its  liability  for  the 
satisfaction  of  all  his  just  debts,  except  in  so  far  as  it  may 
be  exempt  by  statute.^^ 

The  effect  of  insolvency  is,  in  contemplation  of  law,  to 
convert  the  insolvent's  estate  into  a  common  fund  for  the 
payment  of  his  debts.  The  proceedings  in  bankruptcy,  or 
insolvency,  constitute  the  legal  machinery  by  which  the  estate 
is  transferred  to  his  creditors. ^^ 

Under  these  proceedings  the  insolvent's  property  is 
transferred  by  operation  of  law  to  an  assignee  or  trustee, 
who  is  clothed  with  autliority  to  administer  the  same  for 
the  benefit  of  creditors.  He  sells  the  property,  or  so  much 
thereof  as  may  be  necessary  for  the  purpose,   and,  after 

353  Pars.  Cont.  (7  Ed.),  pp.  430,  431;  R.  S.  of  U.  S.  (2  Ed.). 
§5014 ;  Blanchard  v.  Russell,  13  Mass.  1  ;  Ogden  v.  Saimders,  12 
Wheat.  213;  Sturges  v.  Crowninshield,  4  Id.  119;  Sackett  v.  An- 
dross,  5  Hill,  327;  Adams  v.  Storey,  1  Paine  C.  C.  79. 

^^ Supra  §  5;  and  see  3  Pars.  Cont.  (7  Ed.),  pp.  428,  429. 

^^  Sturges  V.  Crowninshield,  4  Wheat.  195. 


§  74.]  INSOI.VENCY.  Ill 

paying  expenses  of  administration,  distributes  the  residue 
among  the  creditors  pro  rata,  if  the  fund  be  insufficient  to 
pay  them  in  full.  If  there  be  a  surplus  after  paying  ex- 
penses and  all  the  creditors  in  full,  it  is  paid  over  to  the 
insolvent  or  his  legal  representatives. 

The  operation  of  these  laws  embraces  two  classes  of 
debtors:  1.  Dishonest  debtors,  who  do  not  wish  or  intend 
to  pay  their  debts,  in  whose  case  the  law  interposes  and 
does  for  them,  and  for  the  benefit  of  their  creditors,  what 
they  ought  to  do  voluntarily,  but  will  not.  2.  Honest  debt- 
ors, who  wish  to  pay  their  debts,  but  are  unable  to  do  so 
in  full.  In  this  class  of  cases  the  law  comes  to  the  aid  of 
both  debtor  and  creditor,  takes  the  property  of  the  for- 
mer for  the  benefit  of  the  latter,  and  relieves  the  honest 
but  imfortunate  debtor  from  further  obligation  and  em- 
barrassment.^^ 

§  74.  United  States  bankrupt,  and  insolvent  law^s. — 
•Under  the  Federal  Constitution  Congress  is  authorized  to 
establish  "uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States. "^^  In  virtue  of  this  author- 
ity. Congress  has  enacted  four  general  laws  on  the  subject, 
three  of  which  have  been  repealed,  viz:  1.  The  act  of 
1800,  repealed  1803;  2.  The  act  of  1841,  repealed  1843; 
and  3.  The  act  of  1867,  repealed  1878,  and  the  act  of  1898, 
as  amended  by  the  act  of  1903,  which  is  now  in  force.*" 

It  is  well  settled  that  the  States  have  the  reserved  power 
to  enact  insolvent  laws,  notwithstanding  the  authority 
vested  in  Congress  by  the  United  States  Constitution,  and 
the  laws  passed  on  the  subject  by  Congress  and  the  State 

38  3  Pars.  Cont.  p.  431 ;  2  Black.  Com.  pp.  473,  474. 

39  U.  S.  Const.  Art.  I,  §  8. 
■•°  Collier  Bankruptcy,  p.  861. 


112  INSOLVENCY.  [§  74, 

legislature,  have,  generally,  each  contained  the  distinctive 
features  of  both  bankrupt  and  insolvent  laws.*^ 

To  the  power  of  the  States,  however,  there  are  certain 
limitations. 

1.  The  State  bankrupt  or  insolvent  law  must  not  impair 
the  obHgation  of  a  contract. 

2.  It  must  not  conflict  with  any  existing  act  of  Congress 
on  the  subject. 

3.  The  State  cannot  pass  a  law  that  shall  act  upon  the 
rights  of  citizens  of  other  States,  who  do  not  voltmtarily 
become  parties  to  proceedings  under  it  affecting  such 
rights.*^ 

As  to  when  statutes  are  in  conflict  it  is  held,  that  two 
having  the  same  general  object,  and  acting  upon  the  same 
persons  and  the  same  cases,  by  different  modes  and  in  dif- 
ferent jurisdictions,  must  be  in  conflict  with  each  other. 
Though  the  modes  by  which  the  remedy  is  administered 
may  vary,  yet,  where  the  bankrupt  act  and  the  State  in- 
solvent law  have  substantially  the  same  scope  and  object, 
and  act  upon  the  same  persons  and  cases,  the  State  law  is 
suspended.*^ 

The  effect  of  a  conflict  is  to  suspend,  not  to  abrogate, 
the  State  insolvent  law.  If  the  act  of  Congress  which  sus- 
pends a  State  law  be  repealed,  the  latter  is  thereby  revived 
and  rendered  operative.** 

*>^  2  Kent,  Com.  p.  391 ;  3  Pars.  Cont.  pp.  435-446 ;  Story's  Com. 
on  Conts.  U.  S.  Vol.  Ill,  p.  11. 

*2  2  Kent,  Com.  p.  391,  et  seq.;  Sturges  v.  Crowninshield,  4  Wheat. 
122;  Gibbons  v.  Ogden,  9  Id.  197,  227,  235,  238;  Houston  v.  Moore, 
5  Id.  34,  49,  52,  54;  Ogden  v.  Saunders,  12  Id.  213;  3  Pars.  Cont. 
(7  Ed.),  pp.  431-446. 

<3  Martin  v.  Barry,  2  Bankr.  Reg.  629,  37  Cal.  208 ;  Van  Nostrand 
V.  Carr,  30  Md.  128;  Shears  v.  Sollinger,  10  Abb.  Pr.  Rep.  (N.  S.), 
287;  3  Pars.  Cont.  (7  Ed.),  p.  446  and  notes. 

**  Sturges  V.  Crowninshield,  4  Wheat.  122;  3  Pars.  Cont.  (7  Ed.), 
p.  446. 


§  76.]  MARRIAGE.  113 

VI.     Marriage. 

§  75.  Transfer  of  chattels  by  marriage. — At  common 
law  marriage  vests  the  husband  with  title  to  the  chattels  of 
the  wife,  and  with  the  same  degree  of  property,  and  the 
same  powers,  as  the  wife  when  sole  had  in  and  over  them.*"* 

This  effect  of  marriage  is  the  logical  outcome  of  the  doc- 
trine that  husband  and  wife  constitute  a  unit,  of  which 
the  husband  is  the  embodiment.  By  the  common  law  the 
individuality,  and  being,  even,  of  the  wife  is  in  a  degree 
suspended  during  coverture,  or  legally  merged  in  that  of 
her  husband.*" 

The  personal  property  of  the  wife  in  possession  at  the 
time  of  her  marriage,  in  her  own  right,  vests  immediately 
and  absolutely  in  her  husband.  He  can  dispose  of  it  at 
will,  and  on  his  death  it  passes  to  his  representatives.*'^ 

§  76.  As  to  the  wife's  choses  in  action. — The  husband 
has  a  qualified  property  in  the  choses  in  action  belonging 
to  his  wife  at  the  time  of  their  marriage;  but  to  obtain  an 
absolute  title,  and  render  them  available  to  him,  he  must 
reduce  them  to  possession  by  some  unequivocal  act  signify- 
ing his  claim  of  ownership.  He  may  sue  for  and  recover,  or 
release  and  assign,  them;  and  when  recovered  or  assigned 
the  avails,  whether  in  specie  or  money,  become  absolutely 
his  own  property.*^ 

*^2  Black.  Com.  p.  433;  2  Kent,  Com.  pp.  130,  134;  Reeve,  Dom. 
Rel.  (4  Ed.),  p.  1,  et  seq.;  Browne,  Dom.  Rel.  p.  29;  Bish.  Mar. 
Div.  and  Sep.  §§  14,  15. 

*6  2  Black.  Com.  p.  433 ;  2  Kent,  Com.  p.  129. 

*^  2  Kent.  Com.  p.  143 ;  Hyde  v.  Stone,  9  Cow.  230 ;  Harper  v. 
McWhorter,  18  Ala.  229;  Mahoney  v.  Bland,  14  Ind.  176;  Burgess 
T.  Heape,  1  Hill  (S.  C),  Ch.  397;  Vaden  v.  Vaden,  1  Head  (Tenn.), 
444;  Carleton  v.  Lovejoy,  54  Me.  445. 

**2  Kent,  Com,  p.  135;  Reeve,  Dom.  Rel.  (4  Ed.),  p.  2,  and  notes; 


114  MARRIAGE.  [%77. 

But,  in  case  the  husband  dies  without  having  reduced 
the  chose  in  action  to  possession,  it  will  belong  to  the  wife 
in  her  own  right  without  administering  on  his  estate.** 

On  the  other  hand,  in  case  of  the  wife's  death  before 
the  husband  has  reduced  her  choses  to  possession,  he,  sur- 
viving her,  is  not  vested  with  the  absolute  title  in  virtue 
of  his  marital  rights ;  but  he  may  recover  the  same  to  his 
own  use  through  letters  of  administration,  to  which  the 
husband  is  generally  entitled.''" 

§  77.  No  unjust  discrimination  against  the  wife. — To 

relieve  the  common  law  from  the  unmerited  reproach  cast 
upon  it  by  ardent  reformers,  on  account  of  its  alleged 
cruel  discrimination  against  the  wife,  it  should  be  noticed 
that  the  marital  relation  lays  burdens  upon  the  husband 
from  which  the  wife  is  relieved.  He  becomes  liable  for 
the  payment  of  her  debts  contracted  before  marriage,  even 
though  she  brings  him  no  dower .^^  He  is  obliged  to  main- 
tain his  wife,  and  provide  her  with  necessaries  suitable  to 
her  situation  and  his  condition  in  life,  and  he  is  liable  for 
debts  that  she  may  contract  for  such  things  during  cohab- 
itation.^^ 

Winslow  V.  Crocker,  17  Me.  29;  Tryon  v.  Sutton,  13  Cal.  490;  Fourth 
Ecclesiastical  Soc.  v.  Mather,  15  Conn.  582;  Young  v.  Ward,  21  111. 
223 ;  Evans  v.  Secrest,  3  Ind.  545 ;  Lowery  v.  Craig,  30  Miss.  19 ; 
Tritt's  Adm'rs  v.  Colwell's  Adm'rs.,  31  Penn.  232. 

49  2  Kent,  Com.  p.  135;  Reeve,  Dom.  Rel.  (4  Ed.),  p.  4.  and  n.  1; 
Legg  V.  Legg,  8  Mass.  99 ;  Howes  v.  Bigelow,  13  Id.  384 ;  Griswold 
V.  Penniman,  2  Conn.  564;  Searing  v.  Searing,  9  Paige,  283. 

50  2  Kent,  Com.  p.  135;  Reeve,  Dom.  Rel.  (4  Ed.),  p.  13;  Garforth 
V.  Bradley,  2  Ves.  675 ;  Richards  v.  Richards,  2  Barn,  and  Adol.  447 ; 
Barnes  v.  Underwood,  47  N.  Y.  351. 

51  2  Kent,  Com.  pp.  143.  144 ;  Browne,  Dom.  Rel.  pp.  18,  19 ;  Reeve, 
Dom.  Rel.  (4  Ed.),  p.  95,  et  seq. 

"  2  Kent,  Com.  pp.  146-149 ;  Browne,  Dom.  Rel.  pp.  20-25. 


§  77.]  MARRIAGE.  115 

He  is  also  liable  for  her  torts  committed  both  before 
and  after  marriage.^^ 

Not  merely  does  the  law  relieve  the  wife  of  burdens  in- 
cident to  humanity,  and  lay  them  upon  her  husband,  but 
it  carefully  and  tenderly  provides  protection  for  her  rights, 
and  security  against  injustice  and  oppression  by  her  hus- 
band. If,  for  example,  the  husband  seeks  the  aid  of  a 
court  of  equity  to  get  possession  of  his  wife's  property  to 
which  he  may  be  entitled  in  law,  he  will  be  required  first 
to  make  a  reasonable  provision  out  of  it  for  the  mainten- 
ance of  herself  and  her  children. 

And  chancery  will  sometimes  restrain  the  husband  from 
recovering  her  property  at  law,  until  a  suitable  provision 
is  made  for  her  support.^* 

It  only  remains  to  notice,  that  by  statute  in  most  of  the 
States  if  the  Union,  the  wife  is  empowered  to  hold  and 
deal  with  her  property  independent  of  her  husband,  with 
equal  freedom,  and  to  the  same  extent,  as  a  feme  sole. 

For  the  law  on  this  subject  as  thus  changed,  reference 
must  be  had  to  the  statutes  of  the  several  States. 

53  2  Kent,  Com.  pp.  149,  150;  Reeve,  Dom.  Rel.  (4  Ed.)  ;  p.  100; 
Browne,  Dom.  Rel.  p.  26. 

5*2  Kent,  Com.  p.  139,  et  seq.;  Reeve,  Dom.  (4  Ed.),  p.  12  and 
notes. 


116  GIFT  INTER  VIVOS.  [§  78. 


CHAPTER  IX. 

THE  THIRD  GENERAL  MODE  OF  ACQUIRING  TITLE  TO 

PERSONAL  PROPERTY— TRANSFER  BY  ACT 

OF  THE  PARTIES. 


§§  78-84. 

Gifts  inter  vivos. 

85-89. 

Gifts  causa  mortis. 

90-95. 

Title  by  will  or  testament. 

96-114. 

Sales. 

115. 

Indorsement. 

116. 

Assignment. 

117. 

Bailment. 

This  general  mode  includes:  1.  Gifts  inter  vivos; 
II.  Gifts  causa  mortis;  III.  Title  by  will  or  testament; 
IV.  Sales ;  V.  Indorsements ;  VI.  Assignments ;  VII.  Bail- 
ments. 

These  will  now  be  severally  discussed  in  their  order. 


I.     Gifts  Inter  Vivos. 

§  78.  Definition,  and  subjects,  of  these  gifts. — A  gift 
inter  vivos  is  a  voluntary,  actual,  and  immediate  transfer 
of  a  thing  by  one  living  person  to,  or  for,  another  living 
person.  The  student  should  observe  that  the  term 
"voluntary"  here,  and  generally  in  the  law,  means  without 
consideration.^ 

iBouv.  L.  Diet.,  "Gift;"  2  Kent.  Com.  p.  438,  et  seq.\  1  Pars.  Cent. 
(7  Ed.),  pp.  234-236;  2  Sch.  Pers.  Prop.  p.  68,  et  seq.;  Williams, 
Pres.  Prop.  p.  36;  Bish.  Cont.  (2nd  Enl.  Ed.)  §§  82,  83;  Faxon  v. 
Durant,  9  Met.  339 ;  Penfield  v.  Thayer,  2  E.  D.  Smith,  305. 


§  79.]  GIFT  INTER  VIVOS.  117 

Personal  property  of  every  description,  corporeal  or  in- 
corporeal, may  be  transferred  by  gift.^ 

§  79.  Delivery  essential. — To  complete  a  transfer  by 
gift,  the  donor  must  have  a  present  intention  of  renoun- 
cing all  right  to,  and  dominion  over,  the  thing  given,  with- 
out power  of  revocation,  and  he  must  deliver  posses- 
sion to,  or  for  the  donee. ^  This  rule  is  satisfied  by  an 
absolute  delivery  to  a  third  person  divesting  the  posses- 
sion and  title  of  the  donor,  and  intended  to  confer  the 
title  upon  the  donee.*  And  it  has  been  held,  even,  that 
the  donor  may,  by  an  apt  declaration  to  that  effect,  con- 
vert himself  into  a  trustee  for  the  donee.^  Delivery  may 
be  constructive  or  symbolical,  as  well  as  actual  and  man- 
nual,  but  delivery  must  be  actual  if  the  thing  is  capable 
of  delivery .° 

A  debt  due  from  the  donee  to  the  donor  may  be  the 
subject  of  a  gift  from  the  latter  to  the  former;  and  the 
gift  may  be  consummated  by  a  delivery  to  the  donee  by 
the  donor  of  any  evidence  of  the  debt  existing;  and  if 
there  be  none,  then  by  a  delivery  of  a  receipt  in  full.'' 

2  Citations  last  supra ;   and  see  Bogan  v.   Finlay,   19   La.   An.  94. 

^  Citations  supra  under  §  78 ;  Sewal  v.  Glidden,  1  Ala.  52 ;  An- 
derson V.  Baker,  1  Ga.  595 ;  People  v.  Johnson,  14  111.  342 ;  Dole 
V.  Lincoln,  31  Me.  422;  Reed  v.  Spaulding,  42  N.  H.  114;  Carpenter 
V.  Dodge,  20  Vt.  595 ;  Irish  v.  Nutting,  47  Barb.  370 ;  Brink  v.  Gould, 
7  Lans.  425 ;  Jackson  v.  Twenty-third  Street  Railway  Co.,  88  N.  Y. 
520,  526;  Wallace  v.  Burdell.  97  Id.  131. 

4Hurlbut  V.  Hurlbut,  49  Hun,  189;  Young  v.  Young,  80  N.  Y.  422, 
430;  Hutchings  v.  Miner,  46  N.  Y.  456;  Sch.  Pers.  Prop.  pp.  80,  82. 

5  Taylor  v.  Kelley,  5  Hun,  115;  Gray  v.  Barton,  55  N.  Y.  68,  72. 

^Citations  supra  under  §  78;  Allen  v.  Cowan,  23  N.  Y.  502;  Marsh 
V.  Fuller,  18  N.  H.  360;  Cooper  v.  Burr,  45  Barb.  9;  Hackney  v. 
Vrooman,  62  Id.  650 ;  Camp's  Appeal,  36  Conn.  88 ;  Gardner  v.  Mer- 
ritt,  32  Md.  78. 

7  Gray  v.  Barton,  55  N.  Y.  68;  2  Sch.  Pers.  Prop.  p.  90. 


118  GIFT   INTER  VIVOS.  [§80. 

If  the  subject  of  the  gift  be  a  chose  in  action,  there  must 
be  an  assignment  or  what  is  equivalent  to  it,  and  the 
transfer  must  be  actually  executed.^ 

A  written  assignment  under  seal  of  money  in  possession 
of  a  third  person,  delivered  to  the  assignee,  may  constitute 
a  valid  gift  and  acceptance  of  the  money.^ 

Equitable  assignments  are  recognized  and  enforced 
where  there  is  not  a  perfect  legal  transfer  under  the  rules 
of  the  common  law,  and  yet  where  the  donor  has  so  far 
completed  his  gift  that  the  donee  is  entitled,  in  justice,  to 
invoke  the  aid  of  a  court  of  equity  to  perfect  his  title.^" 

§  80.  Validity  of  gifts. — Stolen  goods  cannot  be  the 
subject  of  a  valid  gift  as  against  the  true  owner.  The 
thief  takes  no  transmissible  interest.  The  general  rule  of 
law  that  one  cannot  transfer  a  better  title  than  he  posses- 
ses applies  with  full  force  to  gifts."  But  the  equities  of 
subsequent  bona  fide  purchasers  will  be  respected.^^ 

Gifts  of  chattels  prejudicial  to  the  rights  of  creditors 
are  invalid.  It  is  a  well  established  rule  of  law,  that  a 
man  holds  his  property  subject  to  its  liability  for  his 
debts.  He  must  be  just  before  he  is  generous,  and  he  is 
not  at  liberty  to  alien  his  property  by  gift,  or  otherwise, 
in  fraud  of  his  creditors. ^^ 


8  2  Sch.  Pers.  Prop.  pp.  72-74;  2  Kent,  Com.  p.  439. 

9  Matson  v.  Abbey,  141  N.  Y.  179. 

10  2  Sch.    Pers.    Prop.    pp.    75-79 ;    Williams,    Pers.    Prop.    p.    36 
Grover  v.  Grover,  24  Pick.   261 ;   Wing  v.   Merchant,  57   Me.  383 
Allerton   v.   Lacey,    10  Bosw.   362;    EIHson   v.   ElHson,  6  Ves.  656 
Ex  parte  Dubost,  18  Id.  140,  150;  Vandenberg  v.  Palmer,  4  Kay  & 
John.  204. 

112  Sch.  Pers.  Prop.  100;  Hofifman  v.  Carow,  22  Wend.  285. 

12  2  Sch.  Pers.  Prop.  p.  100;  Anderson  v.  Green,  7  J.  J.  Marsh,  448; 
Black  V.  Thorton,  31  Ga.  641;  Green  v.  Kornegay,  4  Jones  (N.  C.), 
L.  66;  Moultrie  v.  Jennings,  2  McNull   (S.  C.),  508. 

^^  Supra,  §  5;  2  Sch.  Pers.  Prop.  p.   101,  et  seq.;   2  Kent,  Com. 


§82.]  GIFT  INTER  VIVOS.  119 

§  81.  Gifts  on  condition,  with  reservation,  or  a  trust. — 

Gifts  are  sometimes  made  with  a  condition  or  reserva- 
tion imposed  by  the  donor,  in  which  cases  the  transfer 
is  sometimes  upheld  as  a  quaHfied  gift,  and  sometimes 
fails  altogether,  according  to  circumstances.^* 

If  there  be  a  lawful  condition  precedent  imposed,  the 
gift  will  take  effect  when,  and  only  when,  the  condition 
is  complied  with.^"* 

Trusts  are  sometimes  attached  to  gifts  at  the  time  of 
delivery,  which  are  sustained  by  the  courts.^* 

§  82.  Gifts  between  parent  and  child. — Ordinarily  the 
law  does  not  presume  a  gift;  but,  in  the  absence  of  quali- 
fying or  contrary  evidence,  a  delivery  of  personal  property 
by  a  parent  to  his  child,  on  or  after  marriage,  will  be 
regarded  as  a  gift  or  advancement.  And,  generally,  less 
evidence  is  requisite  to  characterize  the  transfer  of  per- 
sonal property  by  parents  to  children  as  a  gift,  than  in 
cases  of  non-kinship.^^ 

pp.  440-443;  1  Pars.  Cont.  (7  Ed.),  p.  235;  Thomson  v.  Dougherty, 
12  Serg.  and  R.  448;  Hanson  v.  Buckner,  4  Dana,  251;  Sexton  v. 
Wheaton,  8  Wheat.  229;  Gannard  v.  Elslava,  20  Ala.  732;  Clark 
V.  Depew,  25   Penn.   St.  509;   Trimble  v.  Ratcliffe,  9  B.   Mon.  511. 

1*  Citations  last  supra ;  The  Lucy  Ann,  23  Law  Rep.  545 ;  Duclaud 
V.  Rousseau,  2  La.  An.  168;  Wolf  v.  Estes,  7  Ind.  448;  Hope  v. 
Hutchins,  9  Gill  and  J.  (Md.),  77;  Duncan  v.  Self,  1  Murph.  (N.  C), 
446 ;  Pitts  v.  Mangum,  2  Bailey,  588 ;  Withers  v.  Weaver,  10  Penn. 
St.  391. 

^^2  Sch.  Pers.  Prop.  p.  116;  Berry  v.  Berry,  31  Iowa,  415;  Mart- 
rick  V.  Linfield,  21  Pick.  325. 

1^2  Sch.  Pers.  Prop.  pp.  115-117;  Marston  v.  Marston,  1  Post.  491. 

i^Hallowell  v.  Skinner,  4  Ired.  (N.  C.)  L.  165;  White  v.  Palmer, 
1  McNulI  (S.  C),  Ch.  115;  Whitfield  v.  Whitfield,  40  Miss.  352; 
Syler  v.  Eckhart,  1  Binn.  (Pa.),  378;  Young  v.  Glendemnig,  6  Watts 
(Pa.),  509;  Van  Deusen  v.  Rolwey,  8  N.  Y.  358;  Caldwell  v.  Pickens, 
39  Ala.  514. 


120  GIFT  INTER  VIVOS.  [§  84. 

But  a  gift  by  the  child  to  the  parent,  while  the  former 
is  still  under  parental  authority,  is  presumed  to  be  made 
under  parental  influence,  and  therefore  invalid.  The  bur- 
den of  proof  rests  upon  the  parent  to  rebut  the  presump- 
tion, by  showing  that  the  child  had  independent  advice, 
or  was  otherwise  in  a  position  to  exercise  an  independent 
judgment  as  to  the  gift.^^ 

§  83.  Gifts  between  husband  and  wife. — At  common 
law  there  cannot  be  a  gift  from  the  husband  to  the  wife 
during  coverture,  they  being  one  person  only,  in  contem- 
plation of  law.  But  equity  has  always  upheld  such  gifts, 
whether  made  with,  or  without,  the  invention  of  a  trus- 
tee, when  the  claims  of  creditors  were  not  affected.^* 

§  84.  Revocation  of  gifts. — When  a  gift  is  fully  exe- 
cuted it  is  irrevocable  as  to  the  parties  and  their  legal  rep- 
resentatives, except  for  fraud,  force,  undue  influence,  or 
mental  incapacity  on  the  part  of  the  donor.  Gifts  are  no 
more  revocable  in  their  nature  than  transfers  of  property 
in  other  modes.  Possession  being  given  with  intent  to  part 
with  the  property  in  the  thing,  the  right  of  ownership  and 
dominion  for  all  purposes  goes  with  it.  But  in  behalf  of 
creditors  and  bona  fide  purchasers,  executed  gifts  may  be 
set  aside.^° 


18  Story,  Eq.  Jur.  §  309;  Pom.  Eq.  Jr.  §  962;  Browne,  Dom.  Rel. 
p.  78;  Burgen  v.  Udal,  31  Barb.  9;  Taylor  v.  Taylor,  8  How.  199; 
Archer  v.  Hudson,  7  Beav.  551. 

19  2  Kent,  Com.  p.  163;  Shuttleworth  v.  Winter,  55  N.  Y.  624; 
Rynders  v.  Crane,  3  Daly,  339;  Scott  v.  Simes,  10  Bosw.  314; 
Woodson  V.  McClelland,  4  Mo.  495 ;  Neufville  v.  Thomson,  3  Edw. 
Ch.  92;  Mack  v.  Mack,  3  Hun,  323. 

20  2  Sch.  Pars.  Prop.  p.  114;  2  Kent.  Com.  p.  440;  1  Pars.  Cent. 
(7  Ed.),  p.  236;  Sanborn  v.  Goodhue.  28  N.  H.  48;  Thomson  v. 
Dougherty,  12  Serg.  &  R.  448 ;   Hanson  v.   Buckner,  4  Dana,  251 ; 


§85.]  GIFTS    CAUSA    MORTIS.  121 

II.     Gifts  Causa  Mortis. 

§  85.  Definition. — Various  definitions  of  gifts  causa 
mortis  are  found  in  the  books,  differing  in  some  unimport- 
ant respects,  but  none  is  more  accurate  and  comprehen- 
sive than  that  of  Judge  Redfield.  He  says:  "They  may 
be  defined  as  gifts  of  personal  estate,  made  in  prospect 
ot  death  at  no  very  remote  period,  and  which  are  de- 
pendent upon  the  condition  of  death  occurring  substan- 
tially as  expected  by  the  donor,  and  that  the  same  be  not 
revoked  before  death.^^ 

The  original  source  of  our  law  upon  this  species  of  gift 
is  found  in  the  civil  law.^^  It  occupies  a  middle  ground 
between  gifts  inter  vivos  and  legacies,  partaking  in  some 
respects  of  the  nature  of  both,  while  differing  from  each 
in  other  particulars.^^  It  has  the  substantial  qualities  of 
a  legacy  in  being  ambulatory  and  revocable  during  the 
life  of  the  donor,  in  not  vesting  until  donor's  death,  and 
in  being  subject  to  the  debts  of  the  deceased;  but  differs 
from  a  legacy  in  that  no  action  of  a  court,  or  assent  of  the 
executor,  is  essential  to  confirm  and  effectuate  it.^*  It  is 
like  a  gift  inter  vivos  in  respect  to  the  competency  of  the 
donor,  the  subjects  of  the  gift,  what  constitutes  the  gift, 

Clark  V.  Depew,  25  Penn.  St.  509 ;  Saxton  v.  Wheaton,  8  Wheat.  229. 

213  Redf.  Wills  (2  Ed.),  p.  322,  §  42;  and  see  2  Sch.  Pers.  Prop, 
p.  122;  2  Black.  Com.  p.  514;  2  Kent,  Com.  p.  444;  Bouv.  L.  Diet. 
"Donatio  mortis  causa;"  Michener  v.  Dale,  23  Penn.  St.  59;  Nicholas 
V.  Adams,  2  Whart.  22;  And.  L.  Diet.  "Donatio  mortis  causa." 

222  Kent,  Com.  p.  444. 

233  Redf.  Wills  (2  Ed.),  p.  322,  §  42,  sub.  3;  2  Sch.  Pers.  Prop, 
p.  126;  Bunn  v.  Markham,  7  Taunt.  224,  231 ;  Merchant  v.  Merchant, 
2  Bradf.  Surr.  Rep.  432;  Ward  v.  Turner,  2  Ves.  Sen.  431,  439,  440; 
Lawson  v.  Lawson,  1  P.  Wms.  441. 

**  Citations  last  supra. 


122  GIFTS    CAUSA    MORTIS.  [§86. 

delivery,  and  invalidity  as  against  the  rights  of  creditors; 
and  unlike  in  respect  of  its  revocability  during  the  life  of 
the  donor.^" 

§  86.  Essentials  to  this  gift. — To  constitute  a  gift  causa 
mortis  four  elements  are  essential:  1.  It  must  be  made 
with  a  view  to  donor's  death  from  present  illness,  or  from 
external  and  apprehended  peril ;  2.  The  donor  must  die 
of  that  ailment  or  peril ;  3.  There  must  be  delivery ; 
4.  The  gift  must  be  absolute. 

Under  the  heads  of  gifts  inter  vivos  were  discussed  the 
competency  of  the  donor,  the  subjects  of  the  gift,  renun- 
ciation of  the  donor,  delivery,  and  the  efiFect  upon  credit- 
ors of  the  donor  ;^'  and  as  the  same  doctrines  apply  to  and 
govern  gifts  causa  mortis  in  the  particulars  named,  it  is 
only  necessary  here  to  consider  the  rules  specially  applica- 
ble to  this  species,  and  not  common  to  both. 

1.  The  gift  must  be  made  with  a  view  to  the  donor's 
death  from  present  illness,  or  from  external  and  appre- 
hended peril. 

This  requisite  has  been  the  subject  of  much  difference 
of  opinion.  But  the  general  doctrine  established  by  the 
best  considered  cases,  is,  that  the  donor  must  be  in  expect- 
ation of  death,  then  imminent,  either  from  illness  or  ex- 
ternal peril.^^ 

It  is  not  necessary,  however,  that  the  donor  should  be 
in  extremis.  It  is  only  necessary  that  he  shall  not  recover 
from  the  disease  from  which  he  apprehended  death.^'^ 

25  Citations  last  supra;  and  see  1  Pars.  Cont.   (7  Ed.),  P-  237. 

^^  Supra,  §§  78-84. 

^^Gourley  v.  Linsenbigler,  51  Penn.  St.  345;  Irish  v.  Nutting, 
47  Barb.  370;  Nicholas  v.  Adams,  2  Whart.  17;  Smith  v.  Dorsey, 
38  Ind.  451 ;  Craig  v.  Kittredge,  46  N.  H.  57. 

28  Ridden  v.  Thrall,  125  N.  Y.  572. 


§  87.  ]  GIFTS    CAUSA   MORTIS.  123 

2.  The  donor  must  die  of  the  ailment,  or  peril,  in  view 
of  which  the  gift  was  made.  If  he  be  ill  and  recover,  or 
in  peril  and  escape,  the  gift  does  not  take  effect.  On  this 
point  the  authorities  are  in  harmony.'^® 

§  87.  Title  of  donee,  delivery,  and  effect. — The  donee 
derives  title  directly  from  the  donor  in  his  lifetime,  and 
not  from  his  executors,  or  by  virtue  of  administration. 
Nor  has  the  executor  or  administrator  of  the  donor  any 
claim  upon  the  subject  of  the  gift,  for  the  purpose  of  ad- 
ministration and  the  shares  of  distributees.^" 

To  complete  this  kind  of  gift,  as  in  case  of  gifts  inter 
vivos,  delivery  is  essential.  But  there  are  some  points  of 
difference  between  the  two  species  in  this  regard,  which 
should  not  be  overlooked.  In  the  case  of  a  gift  inter  vivos 
there  must  be  such  a  delivery  by  the  donor,  either  actual 
or  symbolical,  to  or  for  the  donee,  as  will  divert  the  for- 
mer of  all  title  to,  and  dominion  over,  the  subject  of  the 
gift,  and  irrevocably  vest  the  same  in  the  donee.  In  the 
case  of  gifts  causa  mortis  a  distinction  is  made  between 
delivery  to  an  agent  of  the  donor,  and  a  trustee  of  the 
donee.  The  possession  of  the  agent  would  be  the  posses- 
sion of  his  principal,  the  donor,  whose  death  would  termi- 
nate the  agent's  authority,  so  that  he  could  not  thereafter 
make  a  valid  delivery  to  the  donee.  But  possession  of  the 
trustee  would  be  the  possession  of  his  principal,  the  donee ; 
so  that  delivery  to  the  trustee  is,  in  effect,  delivery  to  the 
donee,    thus    completing    the    gift,    subject    to    revocation. 

29  3  Redf.  Wills  (2  Ed.),  p.  324,  §  42,  sub.  5;  2  Kent,  Com.  p.  444; 
2  Sch.  Pers.  Prop.  p.  151;  Drury  v.  Smith,  1  P.  Wms.  404;  Blount 
V.  Burrow,  1  Ves.  Jun.  546;  Grymes  v.  Hone,  49  N.  Y.  17,  20. 

30  Gannet  v.  Tucker,  18  Ala.  27;  House  v.  Grant,  4  Lans.  296; 
Webster  v.  DeWitt,  36  N.  Y.  340. 


124  GIFTS    CAUSA    MORTIS.  [§  88. 

The  trustee  has  power  to  make  actual  delivery  to  the  donee 
after  the  donor's  death,  in  case  of  non-revocation. 

The  fact  that  the  donor  of  a  gift  causa  mortis  has,  dur- 
ing his  life,  the  power  of  revocation,  logically  implies  that 
such  a  delivery  has  taken  place  as  would  sustain  a  gift  in- 
ter vivos,  otherwise  there  would  be  nothing  to  revoke.^^ 

§  88.  Eevocation. — We  have  seen  that  gifts  inter  vivos, 
when  complete,  are  irrevocable.^^  But  a  gift  catisa  mortis, 
until  fully  confirmed  by  the  donor's  death  as  contempla- 
ted, is  revocable  in  three  instances:  1.  By  the  donor's 
recovery  from  the  particular  illness,  or  escape  from  the  im- 
minent peril,  in  view  of  which  the  gift  was  made;  2.  By 
the  death  of  the  donee  prior  to  that  of  the  donor;  and, 
3.  By  the  act  of  the  donor  revoking  the  gift. 

It  is  not  necessary  that  the  donor  should  actually  regain 
possession  of  the  property,  nor  is  it  necessary  that  the 
donee  know  that  the  gift  is  revoked  and  the  property  re- 
claimed. 

If  the  donee  resume  possession  after  the  property  has 
been  reclaimed  by  the  donor,  without  the  latter's  consent, 
or  after  his  decease  and  the  donee  retains  the  property, 
claiming  it  as  a  gift,  he  may,  be  compelled  to  surrender  it 
to  the  personal  representatives  of  the  donor.^^ 

But  these  gifts  are  not  revoked  by  the  donor's  subse- 
quent will  for  the  reason  that  on  his  death  the  title  of  the 

'^2  Sch.  Pers.  Prop.  pp.  152-167;  Ward  v.  Turner,  2  Ves.  Sen. 
431;  Irish  v.  Nutting,  47  Barb.  370;  Hatch  v.  Atkinson,  56  Me.  324; 
Sessions  v.  Mosely,  4  Cush.  87;  Farquharson  v.  Cave,  2  Coll.  356; 
Moore  v.  Darton,  4  De  G.  &  Sm.  517. 

^^  Supra,  §  84. 

33  2  Sch.  Pers.  Prop.  p.  176,  et  seq. ;  2  Kent,  Com.  p.  444 ;  Weston 
V.  Hight,  17  Me.  287;  Merchant  v.  Merchant,  2  Bradf.  Surr.  Rep. 
(N.  Y.)  432;  Bunn  v.  Markham,  7  Taunt.  230;  Wiggle  v.  Wiggle, 
6  Watts,  522;  Parker  v.  Marston,  27  Me.  196. 


§  90.]  TITLE  BY  Wlhh  OR  TESTAMENT,  125 

donee  becomes  absolute,  and  therefore  irrevocable  by  the 
will,  which  is  inoperative  during  the  donor's  lifetime,  the 
only  period  during  which  he  could  exercise  the  power  of 
revocation.^* 

§  89.  Not  favored  in  the  law. — In  closing  this  topic  it 
should  be  noticed,  that  gifts  causa  mortis  are  not  favored 
in  the  law.  They  are  regarded  as  a  fruitful  source  of  liti- 
gation, and  lack  the  formalities  and  safeguards  surround- 
ing wills,  designed  to  prevent  fraud  and  injustice. 

It  is  therefore  held  that  the  evidence  to  sustain  such 
gifts  must  be  of  the  most  clear  and  satisfactory  character.^'' 

III.    Title  by  Will  or  Testament. 

§  90.  Why  assigned  to  this  division. — Title  by  will  or 
testament  is  classed  with  transfers  by  act  of  the  party,  for 
the  reason  that  it  is  derived  immediately  from  the  testator 
who,  by  virtue  of  his  will,  executed  with  due  formality, 
gives  direction  to  his  property  after  his  death.  The 
title  comes  to  his  legatees,  not  in  virtue  of  a  common-law 
rule,  or  by  force  of  a  statutory  provision,  as  to  distribu- 
tees in  case  of  intestacy,  but  by  act  of  the  testator  in  mak- 
ing and  publishing  his  last  will  and  testament.  True,  the 
beneficiaries  do  not  take  possession  of,  and  acquire  domin- 
ion over,  the  property  given  them  by  the  will  without  the 
action  of  an  intervening  party  or  court,  as  the  donee  takes 
from  the  donor  in  case  of  a  gift  inter  vivos,  or  the  vendee 
from  the  vendor  in  case  of  a  sale  but  the  title  of  legatees 


3*  Merchant  v.  Merchant,  supra ;  Nicholas  v.  Adams,  2  Whart.  17 ; 
Jones  V.  Selby,  Prec.  Ch.  300. 

35  1  Delmotte  v.  Taylor,  1  Redf.  Surr.  Rep.  417;  Duffield  v.  Elwees, 
1  Bligh  (N.  S.),  533;  Walsh  v.  Sexton,  55  Barb.  251,  256;  Tillinghast 
V.  Wheaton,  8  R.  I.  536;  Hatch  v.  Atkinson,  56  Me.  324;  Brown  v. 
Brown,  18  Conn.  410;  Bedell  v.  Carll,  2>?,  N.  Y.  581. 


126  TITLE  BY   WILL  OR  TESTAMENT.  [§  90. 

comes,  nevertheless,  in  virtue  and  by  force  of  the  act  of 
the  testator.^® 

There  are  several  kinds  of  legacies;  general,  specific, 
domonstrative,  cumulative,  vested,  contingent,  absolute, 
conditional,  and  residuary ;  but  their  consideration  is 
omitted  here,  as  unnecessary  for  the  purpose  of  explaining 
the  method  of  acquiring  title  now  under  discussion,  and 
not  within  the  scope  of  this  treatise.  The  subject  of  leg- 
acies is  examined  post.^'' 

The  student  will  observe,  that  when  the  will  operates 
upon  personal  property  it  is  often  called  a  testament,  and 
when  upon  real  estate,  a  devise,  but  the  more  general  and 
popular  denomination  of  the  instrument  is,  last  will  and 
testament.  "Devise"  is  the  appropriate  term  for  the  testa- 
mentary disposition  of  real  estate  "legacy"  for  personal 
property.  But  as  "bequest"  has  no  corresponding  term  to 
designate  the  taker,  like  "devisee"  and  "legatee,"  it  is  not 
always  a  convenient  term  for  use.^^  These  terms  are  often 
used  inaccurately  and  indiscriminately  in  testamentary 
instruments,  sometimes  causing  perplexity  in  the  construc- 
tion. As  the  leading  rule  of  construction  and  adjudication 
is,  to  ascertain  and  enforce  the  intention  of  the  testator, 
the  terms  employed  will  not  be  held  to  strict  definitions, 
and  may  be  used  indiscriminately  without  necessarily 
thwarting  the  will  of  the  testator. ^^ 


36  2  Black.  Com.  pp.  512,  513;  1   Sch.  Pers.  Prop.  p.  728,  et  seq.; 
Underbill,  Wills,  Chap.  XIX ;  1  Rop.  Leg.  842. 
"§  130. 

38  Underbill,  Wills,  p.  431;  1  Williams,  Ex'rs,  6;  1  Jarm.  Wills 
(Eng.  Ed.  1861),  702,  n.  k.;  Dupper  v.  Mayo,  1  Saund.  276  f.  n.  4. 

39  4  Kent,  Com.  p.  535  et  seq. ;  O'Hara,  Wills,  p.  29,  §  5  et  seq. ; 
Wootton  V.  Redd,  12  Gratt.  (Va.),  196;  Lepage  v.  McNamara,  5  Iowa,. 
124;  Byers  v.  Byers,  6  Dana  (Ky.),  312;  Pickering  v.  Langdon, 
22  Me.  413;  Creswell  v.  Lawton,  7  Gill  &  J.  (Md.),  227;  Penroyer 
V.  Sbeldon,  4  Blatcbf.  316. 


§  92.]  TITLE  BY    WILL  OR  TESTAMENT.  127 

§  91.  Last  will  and  testament  defined. — The  books  con- 
tain various  definitions  of  a  last  will  and  testament,  diflfer- 
ing  in  phraseology  and  unimportant  particulars,  but  all 
substantially  embodied  in  the  brief  definition  of  Judge 
Redfield — "the  disposition  of  one's  property,  to  take  effect 
after  death."  *» 

It  is  well  said  in  Turner  v.  Scott,^^  that  "the  essence  of 
the  definition  of  a  will  is  that  it  is  a  disposition  of  property 
to  take  effect  after  death." 

§  92.  Testamentary  capacity. — All   persons,  not   under 

natural    or   legal    disability,    are    competent    to  execute   a 

valid  will,  the  exceptional  persons,  and  grounds  of  disabil- 
ity, will  now  be  briefly  noticed. 

1.  Aliens. — While  by  the  common  law  aliens  are  incom- 
petent to  devise  real  estate,  alien  friends — subjects  of 
governments  at  peace  with  us — may  dispose  of  personal 
property  by  will.  But  alien  enemies — subjects  of  govern- 
ments at  war  with  us — are  incapable  of  executing  a  valid 
will  of  personal  property,  even,  unless  by  special  license 
from  the  government  to  reside  and  transact  business  within 
our  territorial  limits  during  the  continuance  of  hostilities.*^ 

2.  linfants. — Under  a  certain  age  an  infant  is  incapable 
of  disposing  of  his  property,  real  or  personal,  by  last  will 
and  testament.  The  limitation  of  age  is  regulated  by  stat- 
ute, both  in  England  and  in  the  American  States,  and  is 
not  uniform;  but  quite  generally  the  age  of  the  testament- 
ary capacity  is  earlier  in  females  than  in  males,  and  for 
the  assumed  reason  that  the  former  nature  earlier  than  the 

40  Underbill,  Wills,  pp.  7,  8;  2  Black  Com.  p.  500;  4  Kent,  Com. 
p.  501;  Dayt.  Surr.  p.  42;  Swinb.  pt.  1,  §  2. 

4^51  Penn.  St.  126;  and  see  Frederick's  Appeal,  52  Id.  338. 

*2  Underbill,  Wills,  pp.  82-88;  2  Kent.  Com.  pp.  62,  63;  1  Pars. 
Cont.  (7  Ed.),  pp.  397,  398;  Williams,  Pers.  Prop.  p.  46. 


128  TITLE  BY   WILL  OR  TESTAMENT.  [§  92. 

latter.  In  England  until  a  comparatively  recent  period,  in 
conformity  to  the  Roman  civil  law,  males  at  fourteen,  and 
females  at  twelve,*^  might  dispose  of  their  personal  estate 
by  will.  But  the  present  English  statute  on  the  subject 
provides,  that  "no  will  made  by  any  person  under  the  age 
of  twenty-one  years  shall  be  valid."  ** 

In  New  York,  males  at  eighteen,  and  females  at  sixteen, 
may  bequeath  their  personal  estate  by  will.*^ 

Each  State  has  its  own  statutory  provisions  on  the  sub- 
ject, and  to  these  the  student  and  practitioner  will  neces- 
sarily refer. 

3.  Coverture. — Under  the  Roman  civil  law,  the  married 
woman  had  the  same  testamentary  capacity  as  a  feme 
sole,  but  in  England  coverture  created  a  disability.  To 
this  rule,  however,  there  were  several  exceptions.  In  many 
of  the  American  States  women  were,  until  a  compara- 
tively recent  period,  and  in  some  of  the  States  still  are, 
subject  to  this  disability.  But  it  is  fast  disappearing  be- 
fore the  tide  of  modern  legislation  setting  in  that  direc- 
tion."" 

4.  Mental  incapacity. — The  exception  covers  a  wide  field, 
embracing  idiocy,  imbecility,  insanity  in  its  various  species 
and  multiplex,  nomenclature,  and,  generally,  all  persons 
included  in  the  comprehensive  designation  non  compos 
mentis. 

It  is  generally  held,  that  where  the  testator  is  free  from 
the  presence  and  disturbing  influence  of  adverse  parties, 
a  lower  degree  of  mental  capacity  will  suffice  to  make  a 
valid  will,  than   is   requisite   for   the   transaction  of   other 


<3  2  Black.  Com.  p.  497. 
"  1  Vic.  c.  26. 

«4  N.  Y.  R.  S.  (8  Ed.),  p.  2547,  §  21. 

"Underbill,  Wills,  pp.  182-184;  Reeve,  Dom.  Rel.  (4  Ed.),  p.  187, 
n.  1 ;  Browne,  Dom.  Rel.  p.  53. 


[§92.]  TITLE  BY  WILL  OR  TESTAMENT.  129' 

business  where  two  minds,  stimulated  by  opposite  interests, 
contend  for  advantage.*^ 

But  the  testator  "must,  at  the  time  of  executing  the 
will,  have  had  sufficient  capacity  to  comprehend  perfectly 
the  condition  of  his  property,  and  his  relations  towards 
the  persons  who  are  or  might  be  the  objects  of  his  bounty, 
and  the  scope  and  bearing  of  the  provisions  of  his  will."  ** 

5.  Undue  influence,  and  fraud. — It  is  not  only  essential 
that  the  testator  should  have  had  the  requisite  mental  ca- 
pacity at  the  time  of  executing  his  will,  but  he  must  have 
been  free  to  use  the  same.  In  other  words,  the  instrument 
produced  as  his  last  will  and  testament,  must  have  been 
his  will,  and  not  that  of  another.  The  exercise  of  undue 
influence,  or  practice  of  fraud,  may  so  dominate  or  bUnd 
the  testator  as  to  induce  him  to  affix  his  executive  hand  to 
an  instrument  that  does  not  express  his  assenting  will. 
Such  an  instrument,  it  is  scarcely  necessary  to  state,  is  in- 
valid. 

To  constitute  undue  influence  having  the  effect  stated, 
it  must  be  such  as  is  exercised  by  coercion,  imposition,  or 
fraud,  and  not  that  which  arises  from  gratitude,  affection, 
or  esteem.*^ 


*''  Converse  v.  Converse,  21  Vt.  168 ;  Stevens  v.  Vancleve,  4  Wash. 
C.  C.  262;  Thompson  v.  Hyner,  65  Penn.  368;  S.  P.  Stubbs  v. 
Houston,  33  Ala.  555;  Howard  v.  Coke,  7  B.  Mon.  (Ky.),  655;  Kinne 
v.  Kinne,  9  Conn.  102;  and  see  Delafield  v.  Parish,  25  N.  Y.  9. 

**  Delafield  v.  Parish,  last  supra,  p.  29 ;  Van  Guysling  v.  Van 
Kuren,  35  N.  Y.  70 ;  Tyler  v.  Gardiner,  Id.  559 ;  Hall  v.  Hall,  18  Ga. 
40;  Sutton  v.  Sutton,  5  Harr.  (Del.),  459;  Hathorn  v.  King,  8  Mass. 
371;  Domick  v.  Reichenback,  10  Serg.  &  R.  84;  Home  v.  Home, 
9  Ired.  (N.  C.)  L.  99. 

4*  Kinne  v.  Johnson,  60  Barb.  69 ;  Van  Hanswyck  v.  Wiese,  44 
Id.  494;  Clarke  v.  Davies,  1  Redf.  Surr.  Rep.  249;  Gardiner  v. 
Gardiner,  34  N.  Y.  155;  Hartman  v.   Strickler,  82  Va.  225;  Wad- 


130  REVOCATION    OF   WILL.  [§  94. 

§  93.  Written,  and  unwritten  wills. — At  common  law, 
a  will  of  personal  property  was  good  without  waiting,"^"  but 
now,  both  in  England  and  the  United  States,  nuncupative 
wills  are  not  valid,  as  a  general  rule  at  least,  except  in  the 
two  cases  of  sailors  and  soldiers,  while  in  actual  service 
and  danger.**^ 

A  will  may  be  written  on  any  material,  and  in  any  lan- 
guage ;  in  pencil  instead  of  ink ;  and  the  whole  or  a  portion 
may  be  in  print,  an  engraving,  or  lithograph.''^ 

§  94.  Revocation. — A  will,  being  ambulatory  during  the 
testator's  life,^^  may  be  revoked  by  him  at  his  pleasure. 
It  is  also  revocable  by  implication  or  inference  of  law.°* 

1.  The  testator  may  revoke  by  a  subsequent  duly  exe- 
cuted will,  or,  pro  tanto,  by  a  codicil.^^  But  the  rules  in 
regard  to  testamentary  capacity,  and  formalities  of  execu- 
tion, apply  to  a  subsequent  will,  and  codicil,  and  must  be 
observed  or  the  instrument  will  have  no  effect  upon  a  for- 
mer will.^® 


dington  v.  Buzby,  43  N.  J.  Eq.  154;  Trost  v.  Dingier,  118  Pa.  St. 
259;  Storey's  Will,  20  111.  App.  183. 

^"4  Kent,  Com.  p.  517;  Swinb.  Wills,  6;  Prince  v.  Hazleton, 
20  Johns.  502;  Ex  Parte  Thompson,  4  Bradf.   Surr.  Rep.  154. 

^^  Citations  last  supra ;  and  Gwin's  Estate,  1  Tuck.  Surr.  44 ; 
Hubbard  v.  Hubbard,  8  N.  Y.  196 ;  Black.  Com.  pp.  500,  501 ;  4  Kent, 
Com.  p.  517. 

52  Underbill,  Wills,  pp.  1-28;  In  re  Dyer,  1  Hagg,  219;  Schneider 
V.  Norris,  2  M.  &  S.  286;  Temple  v.  Mead,  4  Vt.  536;  Henshaw  v. 
Foster,  9  Pick.  312;  Kell  v.  Charmer,  23  Beav.  195. 

53  Supra  §  85. 

"4  Kent,  Com.  p.  521. 

55  Underbill,  Wills,  pp.  302-390,  Christmas  v.  Whingates,  3  Swab. 
&  Tr.  81 ;  White  v.  Casten,  1  Jones,  L.  N.  C.  197 ;  Nelson  v.  McGiffert, 
3  Barb.  Ch.  158;  Conovor  v.  Hoflfman,  15  Abb.  Pr.  R.  100;  Van  Wert 
V.  Benedict,  1  Bradf.  Surr.  114. 

56  Citations  last  supra;  and  Boylan  v.  Meeker,  28  N.  J.  L.  274; 
Wikoff's  Appeal,  15  Pa.  St.  281;  Nelson  v.  Pub.  Adm'r,  2  Bradf. 


§94.]  REVOCATION   OF   WILL.  131 

2.  The  testator  may  revoke  his  will  by  burning,  tearing, 
canceling,  obliterating,  or  otherwise  destroying  the  instru- 
ment itself,  with  the  intent  of  revoking  the  same.^'^  But 
such  a  revocation  requires  testamentary  capacity,  the  same 
as  required  to  execute  a  will.  There  must  be  an  intelligent 
animus  revocandi,  and  freedom  of  volition  and  action.^^ 

3.  Marriage  and  the  birth  of  issue.  The  rule  generally 
obtains  that  the  marriage  of  a  feme  sole  works  a  revocation 
of  her  will  previously  executed.  The  marriage  of  a  man 
does  not,  of  itself  alone,  have  the  same  effect,  but  marriage 
and  the  birth  of  issue  does  so  operate,  unless  where  the 
father  prior  to  making  his  will,  or  contemporaneously  there- 
with, makes  express  provision,  by  a  separate  instrument, 
for  such  future  issue.^" 

4.  Revocation  by  the  birth  of  children  subsequently  to 
the  execution  of  a  will  is  quite  generally  regulated  by  stat- 
ute in  this  country.  The  statutory  provisions  of  the  dif- 
ferent states  on  the  subject,  are  not  in  all  particulars  alike, 
but  the  prevailing  rule  is,  that  the  birth  of  a  child  revokes 
a  will  previously  made,  so  far,  at  least,  as  to  let  in  the  child 
to  a  share  in  the  property,  unless  some  provision  is  made 
for  it,  either  in  the  will  or  otherwise.®" 


Surr.  210;  Delafield  v.  Parish,  25  N.  Y.  9;  Smith  v.  McChesney, 
15  N.  J.  Ch.  359. 

5^  Burtenshaw  v.  Gilbert,  Cowp.  51;  Smith  v.  Clark,  34  Barb.  140; 
Smith  V.  Dolby,  4  Harr.  (Del),  350;  Summer  v.  Summer,  7  Harr. 
&  J.  (Md.),  388. 

'^sidley  V.  Bowen,  11  Wend.  225;  Matter  of  Forman,  54  Barb.  274; 
Smith  V.  Waite,  4  Id.  28 ;  Laughton  v.  Atkins,  1  Pick.  435. 

59  Underbill,  Wills,  pp.  328-330 ;  Hodsden  v.  Lloyd,  2  Br.  Cr.  Cas. 
534;  Cotter  v.  Layer,  2  P.  Wms.  623,  624;  Kenebel  v.  Scrafton, 
2  East,  530;  Bush  v.  Wilkins,  4  Johns.  Ch.  506;  Warnes  v.  Beach^ 
4  Gray,  162;  Morton  v.  Onion,  45  Vt.  145. 

80  4  Kent,  Com.  p.  526;  Walker  v.  Hall,  34  Pa.  St.  483;  Ash  v. 
Ash,  9  Ohio  St.  383;  Fallow  v.  Chidester,  46  la.  588;  Deupree  v. 
Deaupree,  45  Ga.  415 ;  Bloomer  v.  Bloomer,  2  Bradf .  Surr.  339. 


132  SALES.  [§96. 

§  95.  When  the  will  takes  effect. — A  will  of  personal 
property  does  not,  as  a  rule,  take  effect,  nor  are  there  any 
rights  acquired  under  it,  until  the  death  of  the  testator. 
In  legal  phrase,  a  will  speaks  from  the  death  of  a  testator.'^ 

The  subject  of  wills  is  regulated  by  statute  in  the  several 
state  of  the  Union,  presenting  considerable  diversity  of 
provisions,  so  that  general  rules,  only,  could  here  be  given, 
and  only  a  few  of  the  multitude  of  cases  on  the  subject 
have  been  cited. 


IV.  Sales. 

§  96.  Sale  defined. — A  bargain  and  sale  of  goods, 
termed  in  brief  "a.  sale,"  is  accurately  defined  to  be  "a 
transfer  of  the  absolute  or  general  property  in  a  thing  for 
a  price  in  money."  ®^  Chancellor  Kent  thus  defines  a  sale : 
"A  sale  is  a  contract  for  the  transfer  of  property  from  one 
person  to  another,  for  a  valuable  consideration."  ®^  This 
definition  differs  from  the  above  by  embracing  cases  of 
barter  and  exchange,  where  the  consideration  is  other  than 
money,  and  which  do  not,  therefore,  constitute  a  sale  ac- 
cording to  the  strict  common  law  definition,  which  requires 
a  consideration  in  money,  paid  or  promised.^*     But  it  has 

eijarm.  Wills  (5  Am.  Ed.),  600;  Banks  v.  Thornton,  11  Hare, 
176;  Delasherois  v.  Delasherois,  11  H.  L.  Cas.  62;  Wagstaff  v. 
Wagstaff,  Law  R.  Eq.  229;  Deegan  v.  Livingston,  15  Mo.  230; 
Leigh  V.  Savidge,  14  N.  J.  Eq.  124;  Gourley  v.  Thompson,  2 
Sneed  (Tenn.),  387;  Canfield  v.  Bostwick,  21  Conn.  550;  George  v. 
Green,  13  N.  H.  521;  Van  Vecbten  v.  Van  Vechten,  8  Paige,  104. 

62Benj.  Sales,  p.  1 ;  2  Sch.  Pers.  Prop.  186;  2  Black.  Com.  p.  446; 
Story,  Sales,  §  1 ;  Martin  v.  Adams,  104  Mass.  262 ;  Wittowski  v. 
Wasson,  71  N.  C.  451;  Smith  v.  Weaver,  90  111.  392;  Creveling  v. 
Wood,  95   Pa.   St.   152,   158. 

632  Kent,  Com.  p.  468. 

6*Benj.  Sales,  p.  1,  n.  1 ;  1  Pars.  Cont.  (7  Ed.),  p.  521,  n.  (g)  ; 
Mitchell  v.  Gile,  12  N.  H.  390;  Vail  v.  Strong,  10  Vt.  457. 


§96.]  '      SALES.  133 

been  held  that  if  property  be  taken  at  a  fixed  money  price, 
the  transfer  amounts  to  a  sale,  whether  the  price  be  paid 
in  cash  or  in  goods.^^  The  distinction  between  a  sale  and 
barter  or  exchange  is  frequently  ignored  in  the  books,  and, 
indeed,  it  is  not  of  much  practical  importance,  as  the  prin- 
cipal elements  of  the  contract,  and  the  rights  and  remedies 
of  the  parties,  are  substantially  the  same  in  both  cases."" 

Mr.  Tiedeman,  in  his  excellent  treatise  on  Sales,  formu- 
lates for  his  treatment  of  the  subject  the  following  defini- 
tion :  "In  the  sense  in  which  the  term  is  to  be  employed 
in  this  book,  a  sale  may  be  defined  to  be  a  contract  or  agree- 
ment for  the  transfer  of  the  absolute  property  in  person- 
alty from  one  person  to  another  for  a  price  in  money."  "^ 

This  definition  differs  from  the  common  one  by  embracing 
in  effect  executory  sales.  The  distinction  between  executed 
and  executory,  contracts  of  sale  must  be  observed  in  the 
study  of  this  subject.  In  the  former,  there  is  a  present 
transfer  of  the  absolute  property  in  the  subject  of  the  sale; 
in  the  latter,  an  agreement  of  sale  and  future  transfer;  and 
in  such  case,  the  subsequent  transfer  of  the  thing  converts 
an  executory,  into  an  executed,  contract.  It  will  be  ob- 
served that,  while  one  cannot  sell,  he  may  make  a  valid 
agreement  to  sell,  a  thing  to  which  he  has  no  present  title.®^ 


«5Picard  v.  McCormick,  11  Mich.  68;  S.  P.  Keiler  v.  Tutt.  31 
Mo.  301. 

66Dowling  V.  McKenney,  124  Mass.  480;  Redfield  v.  Tegg,  38 
N.  Y.  212;  Commonwealth  v.  Clark,  14  Gray,  367;  Howard  v. 
Harris,  8  Allen,  297;  Mason  v.  Lothrop,  7  Gray,  355. 

^'^Tiede.     Sales,  §  1. 

o^Tiede.  Sales,  §  1;  Benj.  Sales,  pp.  1,  2;  Am.  n.  pp.  3,  4; 
Joyce  V.  Murphy,  8  N.  Y.  291;  Blaisdell  v.  Souther,  6  Gray,  152; 
Elliott  V.  Stoddard,  98  Mass.  145;  Dittmar  v.  Norman,  118  Mass. 
319;  Lester  v.  East,  49  Ind.  588;  Powder  Co.  v.  Burkhardt,  97  U. 
S.  110. 


134  SALES.  [§99. 

§  97.  Elements  of  a  valid  sale. — A  concurrence  of  the 
following  elements  is  essential  to  a  valid  sale,  viz. :  1.  Par- 
ties competent  to  contract;  2.  Mutual  assent;  3.  A  thing, 
the  absolute  property  in  which  is  the  subject  of  the  trans- 
fer ;  and  4.  A  price  in  money  paid  or  promised. 

These  elements  will  now  be  treated  briefly  in  the  order 
named. 

§  98.  Parties  competent  to  contract. — For  a  full  discus- 
sion of  the  subject  of  competency,  reference  must  be  had 
to  works  embracing  the  subject  of  contracts  in  general,  and 
contracts  of  sale.  It  must  suffice  for  present  purposes  to 
state,  that  to  constitute  a  valid  sale,  the  parties  must  have 
both  natural  and  legal  capacity  to  contract.  "By  natural 
capacity  is  meant  a  competent  measure  of  mental  power. 
Legal  capacity  includes  natural,  and  also  the  permission  of 
the  law  to  exercise  it."  ^^  There  may  be  a  want  of  either, 
or  both,  which  creates  incompetency  to  contract.  For  ex- 
ample, infants,  persons  non  compos  mentis,  drunkards, 
married  women,  outlaws  and  persons  attainted,  aliens, 
spendthrifts  and  seamen  may  be  wholly  or  partially  in- 
competent. 

§  99.  Mutual  assent. — To  constitute  a  valid  contract  of 
sale,  there  must  be  not  only  competent  parties,  but  the  mu- 
tual assent  of  these  parties  to  all  the  terms  and  conditions 
of  the  same.  The  minds  of  the  parties  must  meet,  and  as- 
sent to  the  same  thing,  in  the  same  sense,  and  at  the  same 
instant  of  time.''" 


esMet.  Cont.    (Heard's  Ed.),  p.  41. 

TOBishop,  Cont.  (2nd  Enl.  Ed.)  §  313;  1  Pars.  Cont.  (7  Ed.),  p. 
475;  Mete.  Cont.  (Heard's  Ed.),  p.  16;  Tiede.  Sales,  §  33;  Benj. 
Sales,  p.  43 ;  Am.  n.  pp.  70-75 ;  Dickinson  v.  Dodds,  2  Ch.  D.  463. 
472;  Cook  v.  Oxley,  3  T.  R.  653;  Jordan  v.  Morton,  4  M.  &  W. 


§99.]  SALES.  135 

If  an  offer  be  made  by  one  party  in  writing,  orally,  per- 
sonally, by  agent,  by  mail  or  telegraph,  and  received  by 
the  other  party,  its  unconditional  acceptance  by  the  latter, 
communicated  to  the  first  party  completes  a  contract/^  If 
there  be  a  conditional  acceptance,  or  counter  proposition, 
communicated  to  the  first  party,  his  assent  thereto,  duly 
communicated  to  the  second  party,  is  requisite  to  complete 
a  contract."  It  is  not  essential  to  the  completion  of  the 
contract  that  the  assent  should  be  express.  It  may  be  im- 
plied from  language,  or  conduct,  such  as  appropriating 
the  benefits  of  the  proposed  contract,  or  otherwise  treating 
it  as  complete,  or  even  inferred  from  silence.''^  Where  the 
offer  is  made  by  mail  or  telegraph,  the  contract  is  complete 
when  the  letter  of  acceptance  is  mailed,  or  the  telegram 
announcing  acceptance  is  deposited  with  the  telegraph  com- 
pany for  transmission,  although  such  letter  or  telegram 
should  never  reach  the  offerer  J* 


155;  Allis  v.  Read,  45  N.  Y.  142,  149;  Utley  v.  Donaldson,  94  U. 
S.  29.  47. 

"Tiede.  Sales,  §§  38,  39;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  321- 
324. 

^2Tiede.  Sales  §  37 ;  1  Pars.  Cont.  p.  477 ;  Moss  v.  Sweet,  16 
Q.  B.  493 ;  Derrick  v.  Monette,  7Z  Ala.  75 ;  Baker  v.  Holt,  56  Wis. 
100;  Ashcroft  v.  Butterworth,  136  Mass.  511;  Stagg  v.  Compton, 
81  Ind.   171. 

^^Tiede.  Sales,  §38;  Benj.  Sales,  p.  42;  Am.  n.  pp.  70-75; 
Joyce  V.  Swaee,  17  C.  B.  (N.S.),  84,  101;  Cowing  v  Knowles,  118 
Mass.  232;  Street  v.  Chapman,  29  Ind.  142;  Payne  v.  Cave,  3  T. 
R.  148;  Hoadley  v.  McLaine,  10  Bing.  482,  487;  Brogden  v.  Met- 
rop.  Railway  Co.,  2  App.  Cas.  666;  Taylor  v.  Jones,  L.  R.  C.  P.  D. 
87.  90 ;  Crook  v.  Cowan,  64  N.  C.  743 ;  Tucker  v.  Woods,  12  Johns. 
190. 

74  Mactier  v.  Frith,  6  Wend.  103 ;  Adams  v.  Lindsell.  B.  &  Aid. 
681;  Taylor  v.  Insurance  Co.  9  How.  390;  Vassar  v.  Camp,  UN. 
Y.  441 ;  Abbott  v.  Shepard,  48  N.  H.  14 ;  Howard  v.  Daly,  61  N.  Y. 
362 ;  Stockham  v.  Stockham,  32  Md.  196 ;  Bryant  v.  Booze.  55  Ga. 
438;   Trevor   v.   Wood,  36  N.  Y.  307;   Durkee  v.   Central   Railway 


136  SUBJECT  OF  SALE.  [§  100. 

A  telephone  message  is  a  personal  communication,  and 
the  general  rules  of  the  law  of  contracts  apply  to  agree- 
ments made  by  telephone,"^ 

If,  by  reason  of  a  mistake  of  fact  in  regard  to  the  sub- 
ject matter,  or  terms  of  the  contract,  the  minds  of  the  par- 
ties do  not  meet,  there  will  be  no  mutual  assent  to  the  same 
contract,  and,  therefore,  no  sale  or  contract  binding  upon 
either  party.  And  the  same  rule  applies  where  one  of  the 
parties  mistakes  the  other  for  a  third  person;  in  which  case 
he  makes  no  binding  contract.^® 

An  offer  may  be  withdrawn  at  any  time  before  accept- 
ance, unless  there  be  an  agreement  for  a  valuable  consid- 
eration to  hold  it  open  a  stipulated  time  for  acceptance. 
In  case  of  such  an  agreement,  should  the  party  making 
the  offer  withdraw  the  same  before  the  expiration  of  the 
stipulated  time,  he  would  become  liable  to  the  other  party 
for  all  damages  resulting  from  his  breath  of  contract  to 
hold  open,  but  no  liability  will  attach  to  an  option  entered 
into  without  consideration.'^^ 

§  100.  The  subject  of  the  sale. — One  of  the  elements  of 
a  valid  sale,  is  a  thing,  the  absolute  or  general  property  in 
which  is  the  subject  of  the  transfer.'^ 

The  distinction  between  absolute  and  qualified  property 


Co.,  29  Vt.  127;  Thorne  v.  Barwick,  16  Up.  Can.  C.  P.  369;  Mar- 
shall V.  Jamison,  42  Up.  Can.  Q.  B.  120;  Perry  v.  Mt.  Hope  Iron 
Co.,  15  R.  I.  66. 

^^See   Tiede.    Sales,    §   39. 

"®Tiede.  Sales,  §  35;  Bishop,  Cont.  (2nd.  Enl.  Ed.),  §  695,  et  seq.; 
Benj.  Sales,  p.  57,  et  seq. 
(2nd  Enl.  Ed.),  §§  78,  321;   Chic.  &  Great  West.  R.  Co.  v.  Dane, 

"^Tiede.  Sales,  §§  40,  41;  Benj.  Sales,  p.  46,  cf  seq.;  Bishop,  Cont. 
43  N.  Y.  240. 

i^Supra,  §§  96,  97. 


§  100.]  SUBJECT   OF   SAI,E,  137 

will  be  recalled.^®  A  thing  may  have,  in  a  certain  sense, 
two  owners,  one  of  whom  has  the  general,  and  the  other  the 
special,  property  in  it.  For  example,  when  goods  are  de- 
livered in  pawn  or  pledge,  the  general  property  remains 
in  the  pawnor,  and  a  special  property  vests  in  the  pawnee. 
Manifestly,  a  transfer  of  the  special  property  is  not  a  sale 
of  the  thing. 

At  law,  there  cannot  be  a  sale  of  a  thing  that  has  no  ex- 
istence, actual  or  potential.  A  nominal  sale  of  property 
which  is  not  in  existence  at  the  time  of  making,  or  the  time 
of  executing,  the  contract,  conveys  no  title.^°  But,  while 
there  can  be  no  executed  sale  of  a  thing  not  yet  in  exist- 
ence, or  the  title  to  which  has  not  been  acquired  by  the  ven- 
dor, there  may  be  a  valid  executory  agreement  for  the  sale 
of  such  a  thing.*^  And,  if  the  vendor  afterwards  acquires 
title,  and  the  vendee  obtains  lawful  possession  before  the 
rights  of  third  parties  have  intervened,  the  executory  con- 
tract is  converted  into  an  executed  contract  of  sale,  and 
title  vests  in  the  vendee.^^ 

There  may,  however,  be  a  valid  sale  of  a  thing  in  poten- 
tial existence,  before  maturity  of  actual  existence,  as,  for 
example  a  growing  crop,  the  wool  from  a  flock  of  sheep, 
or  the  unborn  young  of  animals. ^^ 


■'^Supra,  §  4. 

soTiede.  Sales,  §  50;  Benj.  Sales,  p.  76;  Am.  n.  pp.  80.  81; 
Strickland  v.  Turner,  7  Ex.  208 ;  Hastie  v.  Conturier,  9  Ex.  102, 
and  5  H.  L.  C.  673 ;  Lunn  v.  Thornton,  1  C.  B.  379 ;  Young  v. 
Bruces,  5  Litt.  324;  Harris  v.  Nicholas,  5  Munf.  483;  Carpenter 
V.  Stevens,  12  Wend.  589. 

"iTiede.  Sales,  §  51;  Benj.  Sales,  pp.  78,  79;  Am.  n.  pp.  80-82; 
Gittings  V.  Nelson,  86  111.  591;  Chesley  v.  Joslyn.  7  Gray,  489; 
Head  v.  Goodwin,  37  Me.  182;  Cressy  v.  Sabre,  17  Hun,  120,  Gard- 
ner V.  Mc  Ewen,  19  N.  Y.  123 ;  Stanton  v.  Small,  3  Sandf .  230. 

^^See  citations  last  supra. 

s^Tiede.    Sales,   §   52;    Benj.    Sales,   Am.   n.   p.   82;    Hall  v.   Hall, 


138  STATUTE  OF  FRAUDS.  [§  102. 

While  at  law  the  rules  are  as  now  stated  in  equity,  if  the 
subject  of  the  sale  can  be  identified  by  the  description  in 
the  contract,  the  sale  is  valid  even  though  the  thing  be  not 
even  in  potential  existence.  As  soon  as  the  thing  comes 
into  existence,  or  into  the  possession  of  the  vendee,  the  title 
passes  to  him.** 

§  101.  A  price  in  money,  paid  or  promised. — We  have 
seen  that  to  distinguish  a  sale  from  barter  or  exchange, 
there  must  be  a  price  in  money,  paid  or  promised.*^  The 
price  may  be  fixed  by  the  agreement  of  the  parties,  or  es- 
tablished by  implication  of  law.  When  property  is  sold 
without  fixing  the  price  by  stipulation,  the  law  raises  a 
promise  by  implication  on  the  part  of  the  purchaser,  that 
he  will  pay  for  the  same  what  it  is  reasonably  worth;  and 
this  has  the  same  binding  force  as  an  express  agreement  of 
the  parties.*® 

§  102.  The  Statute  of  Frauds.— To  the  common  law 
requisites  of  a  valid  contract  of  sale,  the  Statute  of  Frauds 

48  Conn.  250;  McCarty  v.  Blevins,  5  Yerg.  195;  Fonville  v.  Casey, 
1  Murph.  (N.  C),  387;  Sawyer  v.  Gerrish,  70  Me.  254;  Gran- 
than  V.  Hawley,  Hob.  132;  Robinson  v.  McDonnel,  5  M.  &  S.  228; 
Rawlings  v.  Hunt,  90  N.  C.  270;  Conderman  v.  Smith,  41  Barb. 
404. 

8*Tiede.  Sales,  §  53;  Benj.  Sales,  Am.  n.  p.  81;  Holroyd  v. 
Marshall,  10  H.  L.  C.  191 ;  Reeve  v.  Whitmore,  4  De  G.  J.  &  S.  1 ; 
Mitchell  V.  Winslow,  2  Story,  630;  Pennock  v.  Coe,  23  How.  117; 
McCaffrey  v.  Woodin,  65  N.  Y.  459;  Hunter  v.  Bosworth,  43  Wis. 
583;  PhilHps  v.  Winslow,  18  B.  Monr.  431;  Smithhurst  v.  Edmunds,. 
14  N.  J.  Eq.  408. 

85  Supra,  §  96. 

soTiede.  Sales,  §  47;  Benj.  Sales,  pp.  83,  85;  Am.  n.  pp.  85,  86; 
Hoadly  v.  McLaine,  10  Bing.  482;  Taft  v.  Travis,  136  Mass.  95; 
James  v.  Muir,  33  Mich.  224;  McEwen  v.  Morey,  60  111.  32;  Fenton 
V.  Braden,  2  Cranch  C.  C.  550;  Hountz  v.  Kirkpatrick,  72  Pa.  St. 
376. 


§  102.]  STATUTE  OF  FRAUDS.  139 

adds  other  conditions  to  certain  specified  contracts.  The 
English  Statute  of  Frauds  was  enacted  in  1676,  under  the 
title, — "An  Act  for  Prevention  of  Frauds  and  Perjur- 
ies ;"  *^  and  has  been  adopted,  in  substance,  in  most,  if  not 
all,  of  the  American  states.  The  fourth  and  seventeenth 
sections  of  this  statute  affect  contracts  of  sale;  the  former 
applying  to  "lands,  tenements,  and  hereditaments,  or  any 
interest  in  or  concerning  them,"  and  the  latter  to  the  sale 
of  personal  property,  or,  in  the  language  of  the  English 
statute,  "any  goods,  wares,  or  merchandises,  for  the  price 
of  ten  pounds  sterling  or  upwards." 

It  is  the  seventeenth  section  that  we  now  have  to  con- 
sider. It  provides  that  contracts  of  this  class  "shall  not 
be  allowed  to  be  good"  except  upon  one  of  three  conditions, 
namely:  1.  The  buyer  shall  accept  part  of  the  goods  so 
sold,  and  actually  receive  the  same.  2.  Or  give  something 
in  earnest  to  bind  the  bargain,  or  in  part  payment.  3.  Or 
that  some  note  or  memorandum  in  writing  of  the  said  bar- 
gain be  made  and  signed  by  the  parties  to  be  charged  by 
such  contract  or  their  agents  thereunto  lawfully  authorized. 

These  contracts  and  conditions  will  now  be  considered: 

1.  IV^iat  contracts  embraced. — It  may  now  be  regarded 
as  settled  that  this  section  of  the  statute  embraces  execu- 
tory, as  well  as  executed,  contracts  of  sale.  This  question 
gave  rise  to  considerable  discussion,  and  some  conflict  of 
opinion,  in  the  English  courts,  until  it  was  put  at  rest  by 
a  statute  known  as  "Lord  Tenderden's  Act,"  ®^  which  pro- 
vides in  effect  that  the  seventeenth  section  of  the  Statute 
of  Frauds  shall  apply  to  executory  contracts  of  sale.  The 
courts  in  this  country  have  quite  uniformly  held  that  execu- 


"29    Car.  2  c.  3. 

^^  Geo.  IV,  c.  14,  sec.  7. 


140  STATUTE  OF  FRAUDS.  [§  102. 

tory  contracts   for  the   future  delivery  of  goods  are  em- 
braced in  this  section.®^ 

2.  Contracts  not  embraced. — It  may  be  regarded  as  es- 
tablished that  this  section  of  the  statutes  does  not  apply  to 
contracts  for  work  and  labor,  and  materials  found.  But 
the  dividing  line  between  such  a  contract  and  a  contract  of 
sale  where  the  vendor's  labor  and  materials  enter  into  and 
become  a  constituent  element  in  the  subject  of  the  sale,  is 
not  always  easily  drawn.  Considerable  discussion  has 
arisen,  and  some  difference  of  judicial  opinion  has  been 
developed,  in  an  effort  to  formulate  a  rule  for  determining 
on  which  side  of  the  line  a  given  case  belongs,  but  no  imi- 
versally  satisfactory  test  has  yet  been  furnished.  There 
was  a  lack  of  unanimity  in  the  English  authorities  down  to 
the  case  of  Lee  v.  Griffin,^^  and  in  this  country  the  cases 
still  fail  to  harmonize.  Some  follow  the  case  of  Lee  v. 
Griffin,  which  holds,  in  effect,  that  a  contract  for  the  fu- 
ture delivery  of  a  thing  which  is  properly  the  subject  of  a 
sale,  is  a  contract  of  sale,  and  not  a  contract  for  work  and 
labor  and  materials  furnished  notwithstanding  the  skill  of 
the  vendor  is  to  be  exercised,  and  materials  are  furnished 
by  him,  in  carrying  out  the  contract.^^  Other  cases  hold, 
that  if  the  vendor's  skill  is  bargained  for,  it  is  a  contract 
for  work  and  labor,  not  a  contract  for  sale,  and,  therefore, 
not  within  the  Statute  of  Frauds. ^^     The  doctrine  of  an- 

8»Tiede.  Sales,  §  56;  Benj.  Sales,  pp.  88,  89;  Am.  n.  pp.  99, 
100;  Newman  v.  Morris,  4  Har.  &  McH.  221;  Carman  v.  Smick,  15 
N.  J.  L.  252 ;  Edwards  v.  Grand  Trunk  R.  R.  Co.,  48  Me.  379 ;  Ben- 
nett V.  Hull,  10  Johns  364;  Ide  v.  Stanton,  15  Vt.  685;  Atwater  v. 
Hough,  29  Conn.  513;  Waterman  v.  Meigs,  4  Cush.  497:  Cason  v. 
Cheely,  6  Ga.  554;  Jackson  v.  Covert,  5  Wend.  139. 

90  30  L.  J.  Q.  B.  252;  1  B.  &  S.  272. 

91  Harden  v.  McClure,  Chandl.  271 ;  Brown  v.  Sanborn,  21 
Minn.  402;  Prescott  v.  Locke,  51  N.  H.  94. 

92  Downs  V.  Ross,  23  Wend.  270;   Passaic  Mfg.  Co.  v.  Hoffman, 


I  102.]  STATUTE  OF  FRAUDS.  141 

Other  line  of  cases,  briefly  stated,  is  that  a  contract  for  the 
special  manufacture  of  an  article  which  the  vendor  does  not 
keep  in  stock,  is  a  contract  for  work  and  labor  and  ma- 
terials furnished,  and  not  a  sale  within  the  Statute  of 
Frauds.®^  But  where  the  article  ordered  is  "what  the  ven- 
dor ordinarily  sells,  and  it  has  not  been  specially  prepared 
for  the  vendee,"  it  is  a  contract  of  sale,  falHng  within  the 
Statute  of  Frauds.^* 

3.  What  are  "goods,  wares  and  merchandise." — The 
English  courts  restrict  this  clause  of  the  statute  to  cor- 
poreal movable  property;  ^^  but  the  American  authorities 
allow  it  a  broader  scope,  including  incorporeal  property, 
such  as  shares  of  stock,  choses  in  action,  and  the  like.®* 
3  Daly,  495;  Miller  v.  Fitzgibbons,  9  Daly,  505;  Joy  v.  Schloss,  12 
Id.  533;  Seymour  v.  Davis,  2  Sandf.  239;  Smith  v.  N.  Y.  C.  R.  R. 
Co.  4  Keyes,  180;  Bates  v.  Coster,  1  Hun,  400;  Kellogg  v.  Wither- 
head,  4  Hun,  273;  Cook  v.  Millard,  65  N.  Y.  352;  Rentch  v.  Long, 
27  Md.  188. 

»3  Mixer  v.  Howarth,  21  Pick.  205;  Goddard  v.  Binney,  115 
Mass.  450;  Phipps  v.  McFarlane,  3  Minn.  109;  Meincke  v.  Folk, 
55  Wis.  427;  Finney  v.  Apgar,  31  N.  J.  L.  271;  Hight  v.  Ripley, 
19  Me.  137;  Allen  v.  Jarvis,  20  Conn.  38;  Bennett  v.  Nye,  4 
Greene  (la.),  410;  Suber  v.  Pulling,  1  S.  C.  273;  Gadsen  v.  Lance, 
1  McMul.  Eq.  87;  O'Neill  v.  N.  Y.  etc.,  Co.,  3  Nev.  141. 

9*  May  V.  Ward,  134  Mass.  127;  Clark  v.  Nichols,  107  Id.  547; 
Gardner  v.  Joy,  9  Met.  177;  Lamb  v.  Crafts,  12  Id.  353;  Ed- 
wards V.  Grand  Trunk  Railway,  48  Me.  379 ;  54  Me.  105 ;  Ellison 
V.  Brigham,  38  Vt.  64;  Atwater  v.  Hough,  29  Conn.  509;  Sawyer 
V.  Ware,  36  Ala.  675. 

9s  Tiede.  Sales,  §  59;  Benj.  Sales,  p.  105,  ct  seq. 

9«Benj.  Sales,  Am.  n.  pp.  118-120;  Tisdale  v.  Harris,  20  Pick. 
9;  Boardman  v.  Cutler,  128  Mass.  388;  Pray  v.  Mitchell,  60  Me. 
430;  Fine  v.  Hornsby,  2  Mo.  App.  61;  North  v.  Forrest,  15  Conn. 
400;  Calvin  v.  Williams,  3  H.  &  J.  38;  Riggs  v.  Magruder,  2 
Cranch,  C.  C.  143 ;  Baldwin  v.  Williams,  3  Met.  367 ;  Hudson  v. 
Weir,  29  Ala.  294;  Walker  v.  Suple,  54  Ga.  178.  The  statute  of 
New  York  expressly  includes  "things  in  action,"  Part  II,  Title 
2,  C.  7,  §  3.  And  see  Archer  v.  Zeb,  5  Hill,  200;  Peabody  v.  Spey- 
ers,  56  N.  Y.  230. 


142  STATUTE  OF  FRAUDS.  [§  102. 

When  the  subject  of  the  sale  is  part  of  the  soil  by  an- 
nexation, which  becomes  personalty  on  severance,  care  is 
requisite  in  determining  whether  the  case  falls  within  the 
seventeenth  section  of  the  statute  relating  to  sales  of  per- 
sonal property,  or  the  fourth,  which  applies  to  real  estate. 
All  contracts  within  the  latter  section  must  be  evidenced 
by  a  writing,  while  in  the  former  a  writing  is  not  requisite 
where  the  buyer  accepts  part  of  the  goods  sold,  and  actu- 
ally receives  the  same,  or  gives  something  to  bind  the  bar- 
gain, or  in  part  payment.  As  a  rule,  therefore,  if  the  con- 
tract contemplates  the  transfer  of  title  before  severance,  it 
falls  within  the  fourth  section,  but,  if  the  transfer  is  not 
to  take  place  until  after  severance,  it  is  within  the  seven- 
teenth section."^  Severance  may  be  actual  or  constructive. 
A  constructive  severance  will  not  operate  to  the  prejudice 
of  subsequent  purchasers  for  value  of  the  realty  without 
notice.®* 

It  should  be  noticed,  however,  that  in  regard  to  contracts 
calling  for  a  transfer  of  title  before  severance,  the  authori- 
ties distinguish  between  the  natural  products  of  the  soil, 
fructns  naturales,  and  annual  crops,  or  the  fruits  of  culti- 
vation, fructus  industriales.  If  the  subject  of  sale  be  the 
former,  it  is  quite  generally  held  to  fall  within  the  fourth 
section.^®     But  where  the  natural  product  of  the  soil  is  to 

^^  Smith  V.  Surman,  9  B.  &  C.  561 ;  Falmouth  v.  Thomas,  1  C. 
&  M.  105;  Marshall  v.  Green,  1  C.  P.  D.  35;  Parker  v.  Staniland, 
11  East,  362;  Sainsbury  v.  Matthews,  4  M.  &  W.  434. 

^^  Lewis  V.  Rosier,  16  W.  Va.  323 ;  Lacustrine  Fert.  Co.  v. 
Lake  Guano  Co.,  82  N.  Y.  476. 

^^  Crosby  v.  Wadsworth,  6  East,  602 ;  Waddington  v.  Bristow, 
2  B.  &  P.  452;  Carrington  v.  Roots,  2  M.  &  W.  248;  Green  v 
Armstrong,  1  Denio,  550;  Kingsley  v.  Holbrook,  45  N.  H.  313 
Olmstead  v.  Niles,  7  N.  H.  522;  Pattison's  Appeal,  61  Pa.  St.  294 
HuflF  V.  McCauley,  53  Pa.  St.  206;  Daniels  v.  Bailey,  43  Wis.  566 
Lillie  V.   Dunbar,   62   Wis.    198;   White   v.    Foster,    102   Mass.   375 


§  102.]  STATUTE  OF  FRAUDS.  143 

be  severed  immediately,  or  within  a  reasonable  time,  and 
no  further  benefit  is  expected  to  accrue  to  the  purchaser 
from  its  connection  with  the  soil,  the  contract  is  governed 
by  the  seventeenth  section.^  It  is  a  well  established  Ameri- 
can doctrine  that  a  contract  for  the  sale  of  annual  crops, 
fructus  industriales,  is  governed  by  the  seventeenth  section,^ 
but  some  of  the  English  authorities  hold,  that  where  the 
contract  calls  for  the  present  transfer  of  title,  it  is  not  a 
contract  for  the  sale  of  goods,  wares  and  merchandise,  and 
not,  therefore,  within  the  seventeenth  section.^ 

The  American  courts  hold,  also,  that  a  contract  for  the 
sale  of  fixtures  is  within  the  seventeenth  section  of  the 
statute.* 

4.  What  contracts  reach  the  statutory  limit  of  £10. — 
Where  the  sale  consists  of  only  one  article,  and  its  value 
is  known,  or  agreed  upon  by  the  parties,  no  difficulty  on 

Howe  V.  Batchelder,  49  N.  H.  204;  Buck  v.  Rockwell,  27  Vt.  157; 
Slocum  V.  Seymour,  36  N.  J.  L.  138;  Warren  v.  Leland,  2  Barb. 
613;  Vorebeck  v.  Rowe,  5  Barb.  302;  Harrell  v.  Miller,  35  Miss. 
700. 

1  Marshall  v.  Green,  1  C.  P.  D.  35;  McClintock's  Appeal,  71  Pa. 
St.  365;  Whitmarsh  v.  Walker,  1  Met.  313;  Claflin  v.  Carpenter,  4 
Met.  580;  Nettleton  v.  Sikes,  8  Met.  34;  Smith  v.  Bryan,  5  Md. 
141;  Boyce  v.  Washburn,  4  Hun,  792;  Brown  v.  Stanclift,  80  N. 
Y.  627;  Erskine  v.  Plummer,  7  Greenl.  447;  Banton  v.  Shorey, 
77  Me.  48;   Purney  v.   Piercy,  40  Md.  22. 

2  Marshall  v.  Ferguson,  23  Cal.  65 ;  Bull  v.  Griswold,  19  111. 
631;  Bricker  v.  Hughes,  4  Ind.  146;  Dunne  v.  Ferguson,  1  Hayes, 
540;  Brittain  v.  McKay,  1  Ired.  265;  Moreland  v.  Myall,  14  Bush, 
470;  Evans  v.  Roberts,  5  B.  &  C.  836;  Jones  v.  Flint,  10  A.  &  E. 
755;  Rodwell  v.  Phillips,  9  M.  &  W.  502. 

3Hallen  v.  Runder,  1  C.  M.  &  R.  267;  Mayfield  v.  Wadsley,  3  B. 
&  C.  357;   Parker  v.   Staniland,  11   East,  365. 

*Ross'  Appeal,  9  Pa.  St.  491;  Powell  v.  McAshan,  28  Mo.  70; 
Bostwick  V.  Leach,  3  Day,  476;  Strong  v.  Doyle,  110  Mass.  92; 
Shaw  V.  Corbrey,  13  Allen,  462;  Howard  v.  Fessenden,  14  Allen, 
124;    Morris   v.    French,    106   Mass.    326;    Central    Branch   Bank   v. 


144  STATUTE  OF  FRAUDS.  [§  102. 

this  point  is  presented;  but  when  the  sale  embraces  sev- 
eral articles,  each  of  which  is  of  less  value  than  ten  pounds, 
the  question  may  arise  whether  it  reaches  the  statutory- 
limit.  A  satisfactory  test  may  be  found  in  answer  to  the 
question :  Was  the  transaction  a  unit,  one  entire  contract, 
although  composed  of  different  parts?  If  yea,  and  the 
aggregate  value  of  the  articles  equals  or  exceeds  ten 
pounds,  it  is  within  the  statute;  otherwise  not.^  If,  at  the 
time  of  the  bargain,  it  be  uncertain  whether  the  subject  of 
the  sale  will  reach  the  statutory  limit,  the  sale  will  be  held 
to  come  within  the  operation  of  the  statute  if  it  turn  out 
that  the  value  acually  equals  or  exceeds  ten  poimds  ster- 
ling.« 

A  contract  may  include  a  sale  of  goods,  and  also  other 
matters  not  within  the  statute,  as,  for  example,  the  rendi- 
tion of  service.  In  such  case,  if  the  value  of  the  goods  be- 
ten  pounds  or  upwards,  the  statute  will  apply,  at  least  to" 
the  goods.  But  whether  an  action  can  be  maintained  for 
the  value  of  the  services,  or  other  items  included  in  the  con- 
tract besides  the  goods,  is  a  question  upon  which  the  au- 
thorities do  not  agree.  One  English  case,  at  least,  holds 
the  affirmative  ;^  while  some  American  cases  hold  the  nega- 
tive, unless  there  was  a  separate  and  independent  consid- 
eration for  the  services,  or  other  thing  included.* 

Fritz,  20  Kan.  430 ;  Long  v.  White,  42  Ohio  St.  59 ;  Rogers  v.  Cox. 
96  Ind.  157;  Foster  v.  Mabe,  4  Ala.  402;  Scoggin  v.  Slater,  22  Ala. 
687;  Dame  v.  Dame,  38  N.  H.  429. 

sBaldey  v.  Parker,  2  B.  &  C.  37;  Oilman  v.  Hill,  36  N.  H.  318; 
Gaiult  V.  Brown,  48  N.  H.  183;  Brown  v.  Hall,  5  Lans.  177;  Al- 
lard  V.  Greasert,  61  N.  Y.  1;  Jenness  v.  Wendell,  51  N.  H.  63,  67. 

^  Bowman  v.  Coun,  8  Ind.  58 ;  Carpenter  v.  Galloway,  7i  Ind. 
418;  Gault  v.  Bro^Yn,  48  N.  H.  182;  Brown  v.  Sanborn,  21  Minn. 
402;  Hodges  v.  Richmond  Mfg.  Co.,  9  R.  I.  482;  Watts  v.  Friend, 
20  B.  &  C.  446;  Cox  v.  Bailey,  6  M.  &  0.  193. 

7  Harman  v.  Reeve,  25  L.  J.  C.  P.  257;  18  C.  B.  586. 

8  McMullen  v.  Riley,  6  Gray,  506 ;  Irvine  v.  Stone,  6  Cush  508. 


§  102.]  STATUTE  OF  FRAUDS.  145 

5.  Acceptance  and  receipt. — To  satisfy  this  alternative 
condition  of  the  statute,  two  things  must  concur ;  the  buyer 
must  accept  and  actually  receive  part  of  the  goods.  There 
may  be  an  actual  receipt  without  an  acceptance;  and  so, 
also,  there  may  be  an  acceptance  without  a  receipt,  A  re- 
ceipt may  be,  and  often  is,  evidence  of  acceptance,  but  it 
is  not  conclusive,  or  the  same  thing.  The  purchaser  may 
receive  the  goods  for  the  purpose  of  examination,  that  he 
may  intelligently  exercise  his  option  of  acceptance  or  rejec- 
tion.^ So,  also,  a  receipt  of  goods  by  a  common  carrier 
consigned  to  the  purchaser,  although  in  general  a  delivery 
to  the  latter,  is  not  an  acceptance  by  him,  the  carrier  not 
being  his  agent  authorized  to  accept  the  goods.^°  ; 

A  compliance  with  this  condition  of  the  statute  requires 
a  delivery  of  the  goods,  or  some  portion  of  them,  by  the  ven- 
dor with  the  intention  of  vesting  the  right  of  possession  in 
the  vendee,  and  an  actual  acceptance  by  the  latter  with  the 
intention  of  taking  possession  as  owner. ^^  Acceptance  and 
receipt  by  a  duly  authorized  agent  is,  in  law,  an  acceptance 
and  receipt  by  the  principal,  and  hence  a  compliance  with 

»  Smith  V.  Hudson,  5  B.  &  S.  431;  34  L.  J.  Q.  B.  145;  Chintz 
V.  Surey,  5  Esp.  267;  Philips  v.  Bistolli,  2  B.  &  C.  511;  Cusac  v. 
Robinson,  1  B.  &  S.  299;  30  L.  J.  Q.  B.  261;  Saunders  v.  Topp,  4 
Ex.  390;  Stone  v.  Browning,  51  N.  Y.  211;  68  Id.  598;  Brewster  v. 
Taylor,  63  N.  Y.  587;  Remick  v.  Sanford,  120  Mass.  309;  Bacon  v. 
Eccles,  43  Wis.  227;  Gibbs  v.  Benjamin,  45  Vt.  124;  Hewes  v. 
Jordan,  39  Mb.  472;  Caulkins  v.  Hellman,  47  N.  Y.  449. 

i»  Rogers  v.  Phillips,  40  N.  Y.  519;  Cross  v.  O'Donnell,  44  N. 
Y.  661 ;  Frostbury  Mining  Co.  v.  New  England  Glass  Co.,  9  Cush, 
115;  Grimes  v.  Van  Fetchen,  20  Mich.  410;  Loyd  v.  Wight,  20  Ga. 
578;  Astley  v.  Emery,  4  M.  &  G.  262;  Johnson  v.  Dodgson,  2  M. 
&  W.  656;  Smith  v.  Hudson,  6  B.  &  S.  431;  34  L.  J.  Q.  B.  145; 
Acebal  v.  Levy,  10  Bing.  376 ;  Maxwell  v.  Brown,  39  Me.  98 ;  Haus- 
man  v.  Nye,  62  Ind.  485. 

11 2  Sch.   Pers.   Prop.  pp.  484,  500;   Benj.   Sales,  pp.   126,  et  seq., 
142,  ct  seq.;  Am.  n.  151-155;  Tiede.  Sales,  §§  67-70. 
10 


1,46  STATUTE  OF  FRAUDS.  [§  102. 

the  statute.*^  But,  a  common  carrier,  while  an  agent  of 
the  vendee  to  receive  the  goods,  is  not,  as  we  have  just 
seen,  his  agent  to  accept  them,  unless,  it  should  be  added, 
he  is  specially  authorized  to  accept. 

What  acts  constitute  acceptance  have  been  considered  by 
the  courts,  and  from  the  authorities  the  rule  may  be  de- 
duced, that  the  exercise  of  ownership  over  the  goods  by  the 
vendee,  in  whatever  manner,  or  by  whatever  acts,  is  evi- 
dence of  acceptance.^^ 

As  to  whether  inspection  of  the  goods  is  requisite  to  con- 
stitute acceptance  there  is  some  conflict  of  authority.^* 
But  the  doctrine  is  established  by  the  weight  of  authority, 
that  so  long  as  the  right  of  rejection  remains  to  the  pur- 
chaser, there  has  not  been  a  sufficient  acceptance  to  satisfy 
this  condition  of  the  statute.^^ 

The  question  in  regard  to  the  actual  receipt  of  the  goods 
generally  occurs,  if  at  all,  in  cases  where,  at  the  time  of 
the  sale,  the  goods  are  in  the  vendor's  possession.  In  these 
cases,  generally,  a  transfer  of  the  possession  from  the  ven- 


^2  Outwater  v.  Dodge,  6  Wend.  397;  Barkley  v.  Rensselaer  R. 
R.  Co.,  71  N.  Y.  205;  Snow  v.  Warner,  10  Met.  132;  Dean  v.  Tall- 
man,  105  Mass.  443 ;  Jones  v.  Mechanics'  Bank,  29  Md.  287. 

13  Parker  v.  Wallis,  5  E.  &  B.  21 ;  Gray  v.  Davis,  10  N.  Y.  285; 
Tower  v.  Tudhope,  Zl  Up.  Can.  Q.  B.  200;  Dallard  v.  Botts,  6  Al- 
len (N.  B.),  443;  Pinkham  v.  Mattox,  53  N.  H.  606;  Beaumont  v. 
Beevgerie,  5  C.  B.  301 ;  Kent  v.  Huskinson,  3  B.  &  P.  233 ;  Maber- 
ley  V.   Sheppard,   10   Bing.  99. 

"Morton  v.  Tibbetts,  15  Q.  B.  428;  19  L.  J.  Q.  B.  382;  Currie  v. 
Anderson,  2  E.  &  E.  592;  29  L.  J.  Q.  B.  87;  Kibble  v.  Gough,  38 
L.  T.  (N.  S.),  204;  Hunt  v.  Hecht,  8  Ex.  814;  22  L.  J.  Ex.  293; 
Coombs  V.  Bristol  &  Exeter  R.  R.  Co.,  3  H.  &  N.  510;  27  L.  J.  Ex. 
401 ;  Smith  v.  Hudson,  6  B.  &  S.  431 ;  34  L.  J.  Q.  B.  145. 

1°  Brand  v.  Fetch,  3  Keyes,  409 ;  Shepherd  v.  Pressey,  32  N.  H. 
49 ;  Messer  v.  Woodman,  22  N.  H.  181,  182 ;  Gilman  v.  Hill,  36  N. 
H.  311;  Belt  v.  Marriott,  9  Gill,  331;  Coram  v.  Fisher,  30  Vt.  428; 
Clark  V.  Tucker,  2  Sandf.  157. 


§  102.]  STATUTE  OF  FRAUDS.  147 

dor  to  the  vendee,  or  his  agent,  is  requisite.  But,  on  the 
completion  of  the  bargain,  it  may  be  agreed  between  the 
parties  that  the  vendor  shall  retain  possession  as  the  pur- 
chaser's agent,  or  bailee,  and  this  will  constitute  a  suffi- 
cient receipt.  Or,  at  the  time  of  the  sale,  the  goods  may 
be  in  the  possession  of  the  buyer  as  agent  or  bailee  of  the 
vendor;  in  which  case  no  act  of  receiving  is  necessary,  as 
the  vendee  thereafter  holds  the  goods  as  owner.  Or,  the 
goods  at  the  time  of  the  sale  may  be  in,  or  be  placed  in, 
the  possession  of  a  third  person,  to  hold  as  the  agent  or 
bailee  of  the  purchaser,  and  this  will  be  a  sufficient  receipt 
by  the  vendee  to  satisfy  the  statute.  It  should  be  noticed, 
however,  that  to  render  the  receipt  by  a  third  person  suffi- 
cient, he  must  know  of  and  consent  to  the  trust,  as  a  per- 
son cannot  ordinarily  be  made  a  bailee  or  trustee  without 
his  knowledge  and  consent,  or  by  operation  of  law.^^ 

A  retention  of  lien  by  the  vendor,  or  of  any  control  over 
the  goods  as  vendor,  is  incompatible  with  such  a  delivery 
of  possession  acceptance  and  receipt  as  the  statute  requires. 
In  regard  to  retention  of  vendor's  lien,  the  reasoning  runs 
thus :  Receipt  implies  delivery ;  there  can,  therefore,  be  no 
actual  receipt  by  the  vendee  until  delivery  by  the  vendor; 
the  vendor's  lien  is  lost  by  delivery;  therefore,  if  vendor's 
lien  be  lost  there  has  been  an  actual  receipt  by  the  vendee, 
otherwise  not.^^ 


i«Bentall  v.  Burn,  3  B.  &  C.  423;  Boardman  v.  Spooner,  13  Al- 
len, 353;  Bassett  v.  Camp,  54  Vt.  232;  King  v.  Jarman,  35  Ark. 
190;  Farina  v.  Home,  16  M.  &  W.  119;  Godst  v.  Rose,  17  C.  B. 
229;  25  L.  J.  C.  P.  61;  Lucas  v.  Dorrien,  7  Taunt.  278;  Edan  v. 
Dudfield,  1  Q.  B.  306 ;  Lilliewhite  v.  Devereaux,  15  M.  &  W.  285. 

I'' Marsh  v.  Rouse,  44  N.  Y.  643;  Knight  v.  Mann,  118  Mass. 
443 ;  Safford  v.  McDonough,  120  Mass.  290 ;  Rodgers  v.  Jones,  129 
Mass.  422;  Messer  v.  Woodman,  22  N.  H.  182;  Kirby  v.  Johnson, 
22  Mo.  354 ;  Green  v.  Merriam,  28  Vt.  801 ;  Edwards  v.  Grand 
Trunk  R.  R.  Co.,  54  Me.  105;   Barrett  v.  Goddard,  3  Mason,  107; 


148  STATUTE  OF  FRAUDS.  [§  102. 

6.  Earnest,  or  part  payment. — One  of  the  alternative 
conditions  of  the  statute  is,  that  the  buyer  shall  "give 
something  in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment." The  two  things  are  sometimes  regarded  as  the 
same,  but  such  was  not  the  original  meaning  of  the  statute. 
Earnest  binds  the  bargain;  or,  in  other  words,  renders  the 
bargain  complete  and  binding  under  the  statute,  while 
part  payment  pre-supposes,  or  assumes  the  existence  of  a 
bargain.  The  something  given  in  earnest  may  be  applied 
in  payment,  and  thus  become  "part  payment,"  but, 
among  the  Romans,  and  as  practiced  in  England  at  an 
early  day,  it  was  an  overt  act  designed  to  express  the  full 
and  final  assent  of  the  parties  to  the  contract.^®  Earnest 
must  be  something  of  intrinsic  value,  actually  passed  by 
the  buyer  to  the  vendor,  and  not  returned  by  him.^^  If 
part  payment  is  relied  on  to  satisfy  the  statute,  it  must  be 
something  of  pecuniary  value,  actually  paid  and  accepted. 
A  mere  promise  to  pay  will  not  suf[ice.^° 

It  is  generally  held  in  this  country  that  the  time  of  the 
part  payment  is  immaterial,  if  it  be  made  before  action 
brought.  But  in  the  New  York  Statute  of  Frauds,  the 
provision  corresponding  to  the  English  condition  under 
consideration  is,  "unless  the  buyer  shall,  at  the  time,  pay 
some  part  of  the  purchase  money."  ^^     In  construing  this 

Chaplin  v.  Rogers,  1  East,  195 ;  Elmore  v.  Stone,  1  Taunt.  458 ; 
Jackson  v.  Watts,  1  McCord,  288. 

isBracton,  145;  Glanville,  ch.  XIV;  Beach  v.  Owen,  5T.  R. 
409;  Gooddall  v.  Skelton,  2  H.  Bl.  316. 

1^  Blenkinsop  v.  Clayton,  7  Taunt.  597 ;  Howe  v.  Hayward,  108 
Mass.  54;  Noakes  v.  Morey,  30  Ind.  103. 

20  Combs  V.  Bateman,  10  Barb.  573;  Dow  v.  Worthen,  37  Vt. 
108;  Hunter  v.  Wetsell,  17  Hun,  135;  Archer  v.  Zeb,  5  Hill,  205; 
Krohn  v.  Bautz,  68  Ind.  277;  Edgerton  v.  Hodge,  41  Vt.  676; 
Hicks.  V.  Cleveland,  48  N.  Y.  84;  Walrath  v.  Ingles,  64  Barb.  265. 

21  N.  Y.  R.  S.  Part  II,  Title  2,  Ch.  VII,  §  3,  sub.  3. 


§  102.]  STATUTE  OF  FRAUDS.  149 

provision,  however,  the  courts  have  held  that  it  is  satisfied 
if  a  subsequent  part  payment  be  made  for  the  express  pur- 
pose of  complying  with  the  statute,  and  the  contract  be 
then  reaffirmed  by  the  parties.  In  such  case  the  part  pay- 
ment is  made  "at  the  time,"  within  the  meaning  of  the 
statute.^^ 

While  the  American  statutes  of  frauds  generally,  and 
in  the  main,  are  the  same  in  substance  as  the  English, 
there  may  be  differences  in  particulars  and  phraseology 
which  will  require  attention  in  weighing  and  applying  au- 
thorities. 

7.  Note  or  memorandum  in  writing. — The  third  alter- 
native of  the  statute  is  in  these  words :  "Or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  contract, 
or  their  agents  thereimto  lawfully  authorized."  This  pro- 
vision, it  should  be  observed,  was  not  intended  for  cases 
in  which  the  parties,  either  in  person  or  by  their  agents, 
have  signed  a  written  contract,  but  it  applies  to  parol  con- 
tracts, only.  The  written  "note  or  memorandum"  of  the 
contract,  and  the  contract  itself,  are  distinct  things.  The 
"note  or  memorandum"  assumes  the  existence  of  an  ante- 
cedent parol  contract,  of  which  the  writing  required  is  a 
brief  note  or  memorandum,  an  essential  under  the  statute 
to  validate  the  parol  contract. 

The  principal  questions  arising  under  this  alternative 
condition  of  the  statute  may  be  considered  under  two 
heads: 

First,  Time,  and  manner,  of  noting. — It  is  not  essential 
that  the  note  or  memorandum  should  be  made  at  the  same 


22  Hunter  v.   Wetsell,   57  N.  Y.  375;  84  N.   Y.   544;   Webster  v. 
Zielly,  52  Barb.  482. 


150  STATUTE  OF  FRAUDS.  [§  102. 

time  with  the  contract,  ^^  and  it  has  been  held  that  where 
the  sale  was  made  by  an  agent,  his  authority  to  bind  the 
principal  by  executing  the  memorandum  after  the  termi- 
nation of  his  agency  for  other  purposes,  survives.**  It  is 
not  necessary  that  all  the  terms  of  the  contract  should  be 
noted  at  one  time,  or  on  one  piece  of  paper,  but  it  will  suf- 
fice if  the  whole  contract  be  in  substance  contained  on  sep- 
arate pieces,  and  these  memoranda  make  such  reference  to 
each  other  as  to  show  that  they  are  parts  of  one  whole.^^ 
Where  the  memorandum  is  made  up  of  two  or  more  writ- 
tings,  they  must  either  all  be  signed,  or  the  signed  papers 
must  so  refer  to  the  unsigned  parts  that  the  latter  may  be 
identified  by  the  description,*^  and  the  signed  paper  must 
refer  to  the  unsigned.  A  reference  in  the  unsigned  to  the 
signed  will  not  suffice.*^  Parol  evidence  to  connect  the 
parts  is  not  admissible,*^  nor  is  it  admissible  to  show  terms 
or  stipulations  not  contained  in  the  written  memorandimi.** 

23  Bird  V.  Munroe,  66  Me.  347;  Bill  v.  Bament,  9  M.  &  W.  36; 
Tiede.  Sales,  §  72;  Benj.  Sales,  p.  174,  et  seq. 
2*  Williams  v.  Bacon,  2  Gray,  387. 

25  Peck  V.  Vandemark,  99  N.  Y.  29 ;  Jelks  v.  Barrett,  52  Miss. 
315 ;  Fisher  v.  Kuhn,  54  Miss.  480 ;  Lerned  v.  Wannemacher,  9 
Allen,  412;  Lee  v.  Mahoney,  9  Iowa,  344;  Tallman  v.  Franklin,  14 
N.  Y.  584;  Hinde  v.  Whitehouse,  7  East,  558;  Benj.  Sales,  p.  174, 
et  seq.-  Tiede.  Sales,  §  75. 

26  Tiede.  Sales,  §  75;  Peek  v.  North  Staffordshire  R.  R.  Co.,  H. 
L.  C.  472-569;  Moale  v.  Buchanan,  11  Gill  &  J.  322;  Frank  v. 
Miller,  38  Md.  461;  Farwell  v.  Mather,  10  Allen,  322;  Hazard  v. 
Day,  14  Allen,  494;  Ide  v.  Stanton,  15  Vt.  685;  Stocker  v.  Part- 
ridge, 2  Roberts,  193. 

27Freeport  v.  Bartol,  3  Greenl.  340;  Brown  v.  Whipple,  58  N. 
H.  209;  Ridgway  v.  Ingraham,  50  Ind.  148;  Johnson  v.  Buck,  35 
N.  J.  L.  339;  Beckwith  v.  Talbot,  95  U.  S.  289;  Morton  v.  Dean, 
13  Met.  388;  Smith  v.  Jones,  66  Ga.  338. 

28  Hinde  v.  Whitehouse,  7  East,  558;  Kenworthy  v.  Scofield,  2 
B.  &  C.  945;  Pierce  v.  Corf,  L.  R.  9  Q.  B.  210;  Rishton  v.  What- 
more,  8  Ch.  D.  467;  Benj.  Sales,  p.  174. 

29  Fitzmaurice  v.   Bailey,  9  H.  L.   C.   78 ;   Boydell  v.   Drummond, 


§  102.]  STATUTE  OF  FRAUDS.  151 

But  parol  evidence  is  admissible  to  show  that  the  writing 
is  not  a  correct  or  full  memorandum  of  the  parol  agree- 
ment.^" And  if  the  reference  contained  in  the  signed  pa- 
per is  ambiguous,  parol  evidence  will  be  allowed  to  explain 
the  ambiguity,  and  identify  the  document  to  which  the  ref- 
erence is  made.  This  rule  is  in  accordance  with  the  doc- 
trine of  interpretation  applicable  to  cases  of  latent  ambigu- 
ity.^i 

Second.  What  the  memorandum  should  contain. — 
Stated  generally,  and  in  brief,  the  memorandum  should 
contain,  in  substance,  all  the  material  parts  of  the  contract, 
including  the  names,  or  a  description,  of  both  parties  ;^^ 
the  subject  matter,  which  must  be  correctly  stated;^'  the 
price,  if  actually  agreed  upon  by  the  parties ;  ^*  the  stipu- 
lations as  to  credit,  and  the  time  and  place  of  payment, 


11  East,  142;  Holmes  v.  Mitchell,  7  C.  B.  N.   S.  361;   Benj.  Sales, 
Am.  n.  p.  200. 

30  Elmore  v.  Kinsgate,  5  B.  &  C.  583 ;  Goodman  v.  Griffiths,  1 
H.  &  N.  574 ;  Acebal  v.  Levy,  10  Bing.  376 ;  Pitts  v.  Beckett,  13  M. 
&  W.  743. 

31  Ridgway  v.  Wharton,  6  H.  L.  C.  238 ;  Bauman  v.  James,  3 
Ch.  508;  Long  v.  Milar,  4  C.  P.  D.  450;  Cave  v.  Hastings,  Q.  B.  D. 
125 ;  Shardlow  v.  Cotterell,  18  Ch.  D.  280 ;  20  Ch.  D.  90,  C.  A. 

32  Cooper  V.  Smith,  15  East,  103 ;  Allen  v.  Bennett,  3  Taunt. 
169;  Champion  v.  Plummer,  3  B.  &  P.  252;  Lincoln  v.  Erie  Pre- 
serving Co.,  132  Mass.  129;  Calkins  v.  Falk,  38  How.  Pr.  62;  Mc- 
Elroy  V.  Leery,  61  Md.  397;  Anderson  v.  Harold,  10  Ohio,  399; 
Grafton  v.  Cummings,  99  U.  S.  100;  Sale  v.  Lambert,  18  Eq.  Rep. 
1 ;  Rossiter  v.  Miller,  46  L.  J.  Ch.  228;  5  Ch.  D.  648,  C.  A. 

33  Thornton  v.  Kempster,  5  Taunt.  786 ;  Sari  v.  Bourdillon,  26 
L.  J.  C.  P.  78;  1  C.  B.  (N.  S.),  188;  May  v.  Ward,  134  Mass.  127; 
McElroy  v.  Buck,  35  Mich.  434;  Waterman  v.  Meigs,  4  Cush.  497; 
Penniman  v.   Hartshorn,   13   Mass.  87. 

3*Ide  V.  Stanton,  15  Vt.  685;  Smith  v.  Arnold,  5  Mason,  416 
Phelps  v.  StilHngs,  6  N.  H.  505;  Adams  v.  McMillan,  7  Port.  7i 
Soles  V.  Hickman,  20  Pa.  St.  180;  O'Neil  v.  Crane,  67  Mo.  250 
Argus  Co.  V.  Mayor,  etc.,  of  Albany,  55  N.  Y.  495. 


152  PASSING  OF  TITLE.  [§  103. 

if  such  there  be;^^  and  any  other  terms  and  conditions 
making'  a  part  of  the  contract.  ^*  If  the  memorandum  con- 
tains all  the  statutory  requisites,  and  appears  as  an  offer 
its  acceptance  may  be  proved  by  parol  in  the  absence  of 
written  evidence  of  the  acceptance.^" 

In  regard  to  the  signature  of  the  party  to  be  charged, 
or  his  authorized  agent,  it  is  sufficient  for  the  present 
purpose  to  say,  that  this  requirement  of  the  statute  has 
generally  been  quite  liberally  construed  by  the  courts 
where  anything  has  been  done  with  the  intention  of  sign- 
ing.^^ 

§  103.  Contract  of  sale  in  respect  of  passing  title. — 
Having  considered  what  contracts  of  sale  are  within  the 
statute  of  frauds,  and  the  conditions  requisite  to  render 
such  contracts  "good"  within  the  true  meaning  of  the 
statute,  we  come  now  to  treat  of  contracts  of  sale  in  the 
respect  of  passing  property  or  title.  The  formation  of  a 
valid  contract  is  one  thing,  and  its  effect  when  formed, 
another;  and  here  we  dismiss  the  Statute  of  Frauds,  and 
recur  to  common  law  doctrines. 

The  first  question  demanding  consideration,  both  on 
account  of  its  importance  and  frequent  occurrence,  is  the 
distinction    between   an    executed   and    executory    contract 


35  Wright  V.  Weeks,  25  N.  Y.  158;  Norris  v.  Blair.  39  Ind.  90; 
Williams  v.  Robinson,  73  Me.  186;  Keiete  v.  Myer,  61  Md.  558; 
Smith  V.   Shell,  82  Mo.  215. 

2^  Riley  v.  Farnsworth,  116  Mass.  223;  Oakman  v.  Rogers,  120 
Mass.  214;  Peltier  v.  Collins,  3  Wend.  459. 

37  Warner  v.  Wellington,  3  Drew.  523,  25  L.  J.  Ch.  662;  Smith 
V.  Neal,  2  C.  B.  (N.  S.),  67;  26  L.  J.  C.  P.  143;  Justice  v.  Lang, 
42  N.  Y.  493;  Mason  v.  Dicker,  72  N.  Y.  598;  Old  Colony  R.  R. 
Co.  V.  Sears,  6  Gray.  25;  Lowber  v.  Connit,  36  Wis.  176;  Smith  v. 
Smith.  8  Blackf.  208;  DeCordon  v.  Smith,  9  Tex.  129;  Lowrey  v. 
Mechaflfey,  10  Watts,  387. 

38Tiede.  Sales,  §§  79,  80;  Benj.  Sales,  p.  204,  et  seq. 


§  103.]  PASSING  OF  TITLE.  153 

of  sale.  This  distinction  has  been  already  briefly  noticed,^^ 
but  some  further  attention  will  be  given  to  it  in  this 
connection.  The  importance  of  the  question  appears  from 
the  fact  that  the  answer  may  determine  on  whom  the  loss 
falls,  where  the  subject  of  the  sale  has  been  lost  or  des- 
troyed;*" or  decide  conflicting  claims  upon  the  property 
by  the  creditors  of  the  vendor  and  the  vendee  ;*^  and,  also,  in 
other  cases  sometimes  arising,  as  where  there  are  conflicting 
claims  between  vendees  touching  the  ownership  of  the 
property,  or  where  it  becomes  necessary  to  decide  upon  the 
proper  form  of  action  for  the  recovery  of  the  goods.*^ 

The  principal  rules  governing  the  transfer,  to  be  con- 
sidered in  determining  the  question  in  cases  liable  to  arise 
in  practice,  will  now  be  noticed  briefly: 

1.  Intention  of  the  parties. — The  leading  rule  is,  the 
intention  of  the  parties.  The  intention  may  be  expressed, 
or  implied  from  the  circumstances;  and  when  ascertained, 

39  Supra,  §  96. 

40Martineau  v.  Kitching,  L.  R.  7  Q.  B.  436;  Logan  v.  La  Me- 
surier,  6  Moore,  P.  C.  116;  Rugg  v.  Minett,  11  East,  200;  Zaquey 
V.  Furnell,  3  Camp.  240;  Oliphant  v.  Baker,  5  Denio,  379;  Gilbert 
V.  N.  Y.  C.  R.  R.  Co.  4  Hun,  378;  Joyce  v.  Adams,  8  N.  Y. 
291 ;  Pleasants  v.  Pendleton,  6  Rand.  473 ;  Lingham  v.  Eggleston, 
27  Mich.  324;  Hutchinson  v.  Hunter,  7  Pa.  St.  140;  Waldo  v.  Bel- 
cher,   11    I red.  609. 

*i  Hanson  v.  Myer,  6  East,  614 ;  Acraman  v.  Morris,  8  C.  B.  449 ; 
Colder  v.  Ogden,  15  Pa.  St.  58;  Brewer  v.  Smith,  3  Greenl.  44; 
Weld  V.  Cutler,  2  Gray,  195 ;  Huff  v.  Hires,  39  N.  J.  L.  4 ;  Hale  v. 
Huntley,  21  Vt.  147;  Smart  v.  Batchelder,  51  N.  H.  140;  Comfort 
V.  Kierstedt,  26  Barb.  472;  Ward  v.  Shaw,  7  Wend.  404;  Fosdick 
V.  Schall,  99  U.  S.  235. 

42Horr  V.  Baker,  8  Cal.  603;  Croft  v.  Bennett,  2  N.  Y.  258; 
Kimberley  v.  Patchin,  19  N.  Y.  330;  Groat  v.  Gile,  51  N.  Y.  431; 
Pfistner  v.  Bird,  43  Mich.  14;  Barrow  v.  Coles,  3  Camp.  92;  Mires 
V.  Solesby,  2  Mod.  243 ;  Cushman  v.  Holyoke,  34  Me.  289 ;  Devane 
V.  Fennell,  2  Ired.  37;  Davis  v.  Hill,  3  N.  H.  382;  Strauss  v.  Ross, 
25  Ind.  300. 


154  PASSING  OF  TITLE.  [§  103. 

if  legal,  it  will  be  decisive  of  the  question.     On  this  point 
the  authorities  are  abundant  and  harmonious.*^ 

2.  Delivery. — Treating  delivery  as  related  to  a  transfer 
of  title,  it  may  be  stated  that  an  actual  delivery  of  posses- 
sion from  the  vendor  to  the  vendee,  is  not  requisite  to  pass 
the  title  as  between  the  parties,  unless  it  was  their  inten- 
tion that  the  title  should  pass  before  such  delivery.  But 
it  is  quite  generally  held  that  retention  of  possession  by 
the  vendor  is  prima  facie  evidence  of  fraud  upon  creditors 
and  subsequent  purchasers.** 

3.  Delivery  without  transfer  of  title. — The  vendor  may 
deliver  possession  to  the  purchaser,  reserving  to  himself 
the  title  until  payment  of  the  purchase  price.  Delivery, 
however,  without  reservation  of  the  title  by  express  agree- 
ment is  presumptively  a  waiver  of  prepayment,  and  passes 
title  to  the  vendee.*"^ 

If  the  vendor  thus  retains  title,  and  the  purchase  price 
be  not  paid  according  to  the  agreement,  he  may  recover 
possession  of  the  goods.*^ 

43Tiede.  Sales,  §  83;  Benj.  Sales,  Am.  n.  pp.  239,  240;  Russell 
V.  Carrington,  42  N.  Y.  118,  1  Am.  Rep.  498;  Terry  v.  Wheeler, 
25  N.  Y.  525 ;  Hurd  v.  Cook,  75  N.  Y.  454 ;  Hatch  v.  Oil  Co.,  100 
U.  S.  131;  Elgee  v.  Cotton  Cases,  22  Wall.  187;  Bellows  v.  Wells, 
36  Vt.  599;  Fitch  v.  Burk,  38  Vt.  689;  Callagan  v.  Myers,  89  111. 
570;  Weed  v.  Boston  Ice  Co.,  12  Allen,  377;  Stone  v.  Peacock,  35 
Me.  388;  Lester  v.  East,  49  Ind.  588;  Fletcher  v.  Ingram,  46  Wis. 
201. 

"Simmons  v.  Swift,  5  B.  &  C.  857;  Gilmore  v.  Supple,  11  P.  C. 
551;  Dixon  v.  Yates,  Barn.  &  Ad.  313;  Wade  v.  Moffit,  21  111.  110. 

*5  Hammet  v.  Linneman,  48  N.  Y.  399 ;  Bowen  v.  Buck,  13  Pa. 
St.  146;  Harlow  v.  EUis,  15  Gray,  229;  Mixey  v.  Cook.  31  Me. 
340. 

*6Ayer  v.  Bartlett,  9  Pick.  156;  Reed  v.  Upton,  10  Pick,  522; 
Hasbrouck  v.  Lounsberry,  26  N.  Y.  598;  Brant  v.  Bowlby,  2  B.  & 
Adol.  932;  Thompson  v.  Ray,  46  Ala.  224;  Fosdick  v.  Shall,  99  U. 
S.  250;  Boon  v.  Moss,  70  N.  Y.  465;  Vassar  v.  Buxton,  86  N.  C. 
335 ;  Fleck  v.  Warner,  25  Kan.  492. 


§  103.]  PASSING  OF  TITLE.  155 

The  delivery  of  goods  to  a  common  carrier  consigned 
to  the  vendee,  is,  as  a  rule,  delivery  to  the  vendee,  and 
transfers  the  title  to  him.  But  where  the  bill  of  lading  is 
taken  by  the  vendor,  to  his  own  order,  he  reserves,  pre- 
sumptively, the  title  and  the  jus  disponendi,  and  is  at 
liberty  to  dispose  of  the  goods  to  others.*^  The  bill  of 
lading  represents  the  goods,  and  its  transfer  operates  as  a 
transfer  of  the  same.** 

4.  Sale  of  specific  goods  unconditionally. — In  a  contract 
of  sale  of  specific  goods  unconditionally,  presumptively  the 
title  passes  immediately ;  and,  according  to  American  au- 
thorities, there  is  an  immediate  transfer  of  title  in  case  the 
price  has  been  paid,  or  credit  expressly  given.  But  where 
the  goods  are  not  sold  on  credit,  repayment  of  price  is  a 
condition  precedent  to  the  transfer  of  title.*^  It  should  be 
stated,  however,  that  some  of  the  later  English  cases  hold, 
that  the  title  passes  on  completion  of  the  contract,  without 
prepayment  of  price,  but  that  the  vendor  may  withhold 
possession  until  the  price  is  paid.  The  American  holding 
seems  the  more  reasonable.^" 

5.  Sale  of  specific  chattels  conditionally. — It  is  quite 
obvious  that  on  a  sale  of  specific  chattels  subject  to  a  con- 
dition precedent,  the  title  will  not  pass  until  the  condition 


«  Dows  V.  Nat.  Exch.  Bank,  91  U.  S.  618 ;  St.  Joze  v.  Indians, 
1  Wheat.  208;  Hobart  v.  Littlefield,  13  R.  I.  341;  Farmers'  etc.. 
Bank  v.  Logan,  74  N.  Y.  568;  Wilmhurst  v.  Bowker,  2  M.  &  G. 
792;  Ellershaw  v.  Magniac,  6  Ex.  570. 

48  Marine  Bank  v.  Wright,  48  N.  Y.  1 ;  Bank  of  Rochester  v. 
Jones,  4  N.  Y.  497;  Mich.  Cent.  R.  R.  Co.  v.  Phillips,  60  111.  190; 
Schumaker  v.  Eby,  24  Pa.  St.  521 ;  First "  Nat.  Bank  v.  Bailey, 
115  Mass.  230. 

49Tiede.  Sales,  §  86;  Barrett  v.  Pritchard,  2  Pick.  512;  Ayer  v. 
Bartlett,  9  Pick.  156;  Reed  v.  Upton,  10  Pick.  522;  Fishback  v. 
Van  Dusen,  33  Minn.  Ill;  33  Am.  L.  R.  506,  note. 

50  See  Tiede.    Sales,  §  86. 


156  PASSING  OF  TITI.E.  [§  103. 

is  performed.  While  the  general  doctrine  thus  stated  is 
quite  simple,  and  universally  recognized,  the  question  as 
to  when  the  contract  is  encumbered  with  a  condition  pre- 
cedent, has  given  rise  to  considerable  discussion,  and  some 
conflict  of  judicial  opinion.  As  the  limitation  of  this 
treatise  will  not  permit  a  full  examination  of  the  question, 
the  reader  is  referred  to  the  textbooks  hereunder  named, 
and  the  authorities  therein  cited,  for  an  exhaustive  discus- 
sion of  the  subject.^^ 

6.  Sale  of  goods  not  specific. — Identification  of  the  sub- 
ject matter  of  the  sale  is  essential  to  the  transference  of 
title  thereto.  Hence,  where  the  contract  is  for  the  sale  of 
a  quantity  of  goods  without  reference  to  any  particular  lot, 
or  of  a  portion  of  a  larger  bulk,  no  title  passes  in  severalty 
until  the  goods  which  are  to  constitute  the  subject  of  the 
sale  are  identified,  or  selected  for  transfer. 

Thus  far  the  authorities  are  substantially  in  accord,  and 
a  few  citations  will  sufiEice.^-  In  regard  to  the  sale  of  an 
unidentified  portion  of  a  larger  bulk,  some  authorities  hold 
that,  while  title  in  severalty  cannot  be  acquired  by  the 
vendee  without  a  separation  from  the  bulk,  he  may  acquire 
title  to  a  part  in  common  with  the  other  proprietors  of  the 
mass.^^     This   doctrine   may   be   accepted   as   applicable   to 

^1  Tiecle.  Sales,  §  87;  Benj.  Sales,  p.  244,  et  scq.;  Am.  n.  263, 
et  seq.;  2  Kent,  Com.  p.  497;  2  Sch.  Pers.  Prop.  p.  281. 

52  Foot  V.  Marsh,  51  N.  Y.  288;  Brewer  v.  Smith,  3  Greenl.  44; 
Merrill  v.  Hunnewell,  13  Pick.  213 ;  Woods  v.  McGee,  7  Ohio,  467 ; 
Hutchinson  v.  Hunter,  7  Pa.  St.  140;  Waldo  v.  Belcher,  11  Ired. 
609;  Bailey  v.  Smith,  43  N.  H.  141;  Wallace  v.  Breeds,  13  East, 
522;  Busk  v.  Davis,  2  M.  &  S.  397. 

ssCrofoot  V.  Bennett,  2  N.  Y.  258;  Kimberley  v.  Patchin,  19  N. 
Y.  330;  Sanger  v.  Waterbury,  116  N.  Y.  371;  Hoyt  v.  Hartford 
Ins.  Co.,  26  Hun,  416;  Young  v.  Miles,  20  Wis.  615;  Iron  Cliffs 
Co.  V.  Buhl,  42  Mich.  86;  Hurff  v.  Hires,  39  N.  J.  L.  581;  Philips 
V.  Ocmulgee  Mills,  55  Ga.  634. 


§  104.]  MISTAKE,  ETC.,  OF  CONSIDERATION.  157 

cases  where  it  appears  that  the  parties  intended  a  transfer 
of  the  title  before  a  separation  of  the  part  from  the  whole. 
7.  Appropriation  on  sale  of  goods  not  specific. — Under 
a  contract  for  the  sale  of  goods  not  specific  in  order  to  pass 
the  title  in  severalty  to  the  vendee,  there  must  be  an  appro- 
priation of  particular  goods  to  the  contract,  and  this  must 
be  with  the  consent  of  the  vendee,  express  or  implied.^* 

§  104.  Mistake,  failure,  and  illegality  of  considera- 
tion.— 1.  Mistake. — We  have  seen^^  that  the  assent  of  par- 
ties is  an  essential  element  of  a  valid  contract;  that  the 
minds  of  the  parties  must  meet  and  assent  to  the  same 
thing,  in  the  same  sense,  at  the  same  instant  of  time;  and, 
consequently,  that  a  mistake  of  fact  in  regard  to  the  sub- 
ject matter,  or  terms  of  the  contract,  in  any  material  re- 
spect, will  be  fatal  to  the  validity  of  the  contract.  Or,  more 
accurately  stated,  in  case  of  such  a  mistake,  no  contract  is 
made  for  want  of  the  requisite  assent  of  parties. 

The  leading  rules  governing  mistakes  are  the  following: 

(a)  The  mistake  under  consideration  is  one  of  fact,  and 
not  of  law.  Every  person  competent  to  contract  is  pre- 
sumed to  know  the  law ;  the  ancient  and  universal  rule  be- 
ing, ignorantia  juris  neminem  excusat. 

(b)  As  a  general  rule  it  is  only  a  mutual  mistake  that 
will  render  a  contract  void,  or  voidable,  but  a  mistake  on 
one  side  and  a  fraud  on  the  other  will  have  the  same  effect. 


^■'Tiede.  Sales,  §  89;  Benj.  Sales,  pp.  283-293,  312-314;  Han- 
son V.  Myer,  6  East,  614;  Atkinson  v.  Bell,  8  B.  &  C.  277;  Moody 
V.  Brown,  34  Me.  107;  Grove  v.  Brien,  8  How.  429;  Bank  v. 
Bangs,  102  Mass.  291,  295;  Bennett  v.  Smith,  15  Wend.  493; 
Shawham  v.  Van  Nast,  25  Ohio  St.  490;  Aldridge  v.  Johnson,  7  E. 
&  B.  885,  26  L.  J.  B.  296;  Fragano  v.  Long,  4  B.  &  C.  219;  Krul- 
der  V.  Ellison,  47  N.  Y.  36 ;  Alexander  v  Gardner,  1  Bing.  N.  C. 
671. 

'-'^  Supra,  §  99. 


158  MISTAKE,  ETC.,  OF  CONSIDERATION.  [§  104. 

Where  one  party  only  acts  under  a  mistake,  the  other 
party  not  being  responsible  for  it,  the  contract  is  ordina- 
rily enforceable.  But  to  this  rule  there  are  exceptions 
based  on  special  circumstances  to  which  the  reason  of  the 
rule  is  not  applicable;  and,  as  "reason  is  the  soul  of  the 
law,  when  the  reason  of  any  rule  ceases,  so  does  the  law 
itself."  The  maxim  is,  cessante  ratione  legis  cessat  et  ipsa 
lex. 

(c)  A  mistake  of  the  character  now  defined  will  excuse  a 
party  from  the  performance  of  an  executory  contract,  and 
will  also  entitle  him  to  rescind  it  after  execution  if  he 
places  the  other  party  in  statu  quo.  "And  if  that  be  not 
possible,"  says  Benjamin,  "the  deceived  party  must  be 
content  with  a  compensation  in  damages."  If  he  has  paid 
for  an  article  he  may  recover  back  his  money,  provided  he 
restores  the  article  to  the  other  party  in  the  same  condition, 
substantially,  as  when  received  by  him,  otherwise  not.^® 

2.  Failure  of  consideration. — It  is  an  elementary  prin- 
ciple that  a  sufficient  consideration  is  essential  to  a  valid 
contract.  In  general  a  valuable  consideration  is  a  requisite; 
but  a  good  consideration,  "such  as  that  of  blood,  or  of 
natural  love  and  affection,"  will  suffice  in  some  cases.^^ 
Mr.  Bishop's  concise  and  comprehensive  definition  of  a 
consideration  is,  "something  esteemed  in  law  as  of  value,  in 
exchange  for  which  the  promise  in  a  contract  is  made;" 
and  such  a  consideration  only  is  in  question  under  the  head 
of  failure. 

Cases  sometimes  occur  in  which  the  consideration,  ap- 
parently valuable  and   sufficient   at  the  time  of   the  con- 


s^Benj.  Sales,  pp.  346-356;  Am.  n.  p.  356;  Bishop,  Cont.  (2nd 
Enl.  Ed.),  §§  462-466,  693-706;  1  Story,  Eq.  Jur.  §  142,  et  seq.; 
Pom.  Eq.  §  852,  et  seq. 

^'^  1  Pars.  Cont.  p.  427,  et  seq.;  1  Bouv.  L.  Diet.  "Considera- 
tion;" Bishop,  Cont.  (2nd  Enl.  Ed.),  §  35,  et  seq. 


§  104.]  MISTAKE,  ETC.,  OF  CONSIDERATION.  159 

tract,  turns  out  to  be  false  or  valueless,  revealing  a  total 
failure  of  consideration.  Money  paid  or  deposited  on  such 
a  contract  may  be  recovered  back.^* 

It  should  be  noticed,  however,  that  if  the  purchaser  gets 
what  he  bargained  for,  in  the  absence  of  mistake  or  fraud, 
he  will  not  be  permitted  to  allege  failure  of  consideration, 
however  worthless  it  may  be,  in  voidance  of  the  contract."^' 

If  the  failure  of  consideration  be  only  partial,  the 
buyer's  right  to  rescind  will  depend  upon  the  entirety,  or 
divisibility,  of  the  contract.  If  the  contract  be  entire,  and 
the  buyer  has  not  accepted,  or  is  not  willing  to  accept,  a 
partial  performance,  he  may  reject  the  contract  in  toto, 
and  recover  back  the  price.  But  if  he  has  accepted  a  par- 
tial performance,  he  is  not  at  liberty  to  rescind,  and  must 
seek  another  remedy.  If,  however,  the  consideration  and 
the  agreement  founded  thereon  are  both  divisible,  consist- 
ing, of  several  parts,  and  the  part  failure  of  consideration 
can  be  apportioned  to  a  corresponding  part  of  the  agree- 
ment, it  may  he  regarded  and  treated  as  several  contracts, 
and  the  rights  of  the  parties  adjusted  accordingly.  Money 
paid  on  the  failed  portion  of  the  agreement  may  be  recov- 
ered back.®" 

3.  Illegality  of  consideration. — It  is  a  well  establishQ4 
principle  that  a  contract  founded  upon  a  consideration, 
or  requiring  the  performance  of  an  act  which  is  immoral, 
illegal,  or  contrary  to  public  policy,  will  fall  before  the 
judgment  of  a  court,  either  of  law  or  equity.  If  the  con- 
sideration for  an  indivisible  promise  be  in  part  legal  and 
in  part  illegal,  the  promise  will  be  of  non-effect,  because  of 


58  1  Pars.  Cont.  p.  462;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  71; 
Benj.  Sales,  pp.  346-355;  Am.  n.  p.  356;  Bouv.  L.  Diet.  "Consid- 
eration," sub.   12. 

5^  Citations  last  supra. 

*°  See  authorities  sited,  supra. 


160  FRAUDULENT  SALES.  [§  105. 

resting  in  part  upon  an  illegal  consideration  which  vitiates 
the  whole ;  but  if  the  promise  be  divisible,  or  in  other  words 
if  there  be  two  promises,  the  one  resting  on  the  legal,  and 
the  other  on  the  illegal,  consideration,  the  former  will  stand 
and  the  latter  fall." 

§  105.  Fraudulent  sales. — It  is  a  well  established  and 
wholesome  rule,  that  fraud  renders  all  contracts  voidable. 
This  for  two  reasons ;  first,  such  a  contract  lacks  the  assent 
of  the  deceived  party,  for  an  assent  obtained  by  fraud,  in 
contemplation  of  law,  is  no  real  assent;  and,  secondly,  it  is 
against  the  spirit  and  policy  of  the  law  to  permit  the  de- 
frauding party  to  profit  by  his  own  wrong.^^ 

It  is  quite  difficult,  if  not  impossible,  to  formulate  a  de- 
finition of  fraud  that  shall  be  at  once  sufficiently  accurate 
and  comprehensive,  for  the  reason  that  its  modes  and 
forms  are  multifarious,  and  its  disguises  subtle  and  spec- 
ious. It  will  better  subserve  our  purpose  to  point  out  the 
principal  elements  of  such  fraud  as  will  avoid  a  contract 
of  sale,  and  the  rules  applicable  thereto. 

1.  Misrepresentation,  or  concealment,  of  a  material  fact. 
To  constitute  such  a  fraud  there  must  be  a  misrepresenta- 
tion or  concealment  of  a  material  fact. 

It  is  not  necessary  that  the  misrepresentation  be  in 
words.  It  may  be  effected  by  acts  and  devices  which  create 
in  the  mind  of  the  other  party  a  mistaken  belief  in  regard 
to  the   fact.     Great  skill  is  often  exercised  in  practicing 


ci  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  59,  74,  469,  et  seq.;  1  Pars. 
Cont.  (7  Ed.),  pp.  456-459;  Bouv.  L.  Diet.  "Consideration,"  sub. 
11. 

Benj.  Sales,  p.  361 ;  2  Kent,  Com.  p.  482,  ct  scq.;  Tate  v.  William- 
§§  641,  642;  Dambmann  v.  Schulting,  75  N.  Y.  55;  Rodman  v. 
Thalheimer,  7  Pa.  St.  232;  Smith  v.  Smith,  21  Pa.  St.  367;  Jones 
V.  Emery,  40  N.  H.  348. 


§  105.]  FRAUDULENT   SALES.  161 

deceit.  ^^  But  concealment  alone  of  a  material  fact  is  not 
necessarily  fraudulent  in  law,  however,  it  may  be  judged  in 
the  forum  of  conscience.  It  is  only  so  when  a  party  is 
bound  to  disclose  his  knowledge  in  regard  to  all  material 
facts  by  reason  of  his  fiduciary  relation  to  the  other  party; 
or  where  the  suborinate  condition,  or  mental  incapacity, 
of  the  other  party  demands  of  him  entire  frankness  and 
scrupulous  honesty."*  As  a  general  rule,  with  the  excep- 
tions now  stated,  where  an  article  is  offered  for  sale,  and  is 
open  to  the  inspection  of  the  purchaser,  he  will  not  be  al- 
lowed to  complain  that  the  alleged  defects  were  not  pointed 
out  to  him  by  the  vendor. 

There  are  two  maxims  that  apply  in  such  cases,  namely : 
Caveat  emptor,  and  simplex  commendatio  non  obligat. 
The  purchaser,  in  the  absence  of  fraud  on  the  part  of  the 
vendor,  and  with  an  opportunity  of  ascertaining  the  char- 
acter and  quality  of  the  goods,  must  rely  upon  his  own 
care  and  judgment.^^  This  rule,  however,  must  be  taken 
with  the  qualification  that  the  use  of  any  device  by  the 
vendor  to  induce  the  buyer  to  omit  inquiry,  or  to  divert 
his  attention  from  defects,  may  constitute  fraud. 

While  the  maxim  caveat  emptor  requires  the  exercise  of 
care  and  judgment  on  the  part  of  the  purchaser,  there  are 
cases  holding  that  he  may  rely  on  a  misrepresentation  with- 
out inquiry,  believing  it  to  be  true,  and  yet  have  his  action 
for  fraud.*'''  These  cases  do  not  seem  to  be  wholly  con- 
sistent with  the  general  trend  of  authorities  on  the  subject. 

63Tiede.  Sales,  §§  158,  164;  Benj.  Sales,  p.  361;  Bishop.  Cont. 
(2nd  Enl.   Ed.),   §§  651,  652. 

e^Tiede.  Sales,  §  159;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  655-660; 
Benj.  Sales,  p.  361;  2  Kent,  Com.  p.  482,  et  seq.;  Tate  v.  William- 
son, L.  R.  2  Ch.  55;  McPherson  v.  Watt,  L.  R.  3  App.  Cas.  254; 
Yosti  V.  Laughran,  49  Misso.  594;  Harkness  v.  Eraser,  12  Fla,  336. 

«5Tiede.  Sales,  §  159;   Benj.  Sales,  p.  362;  2  Kent,  Com.  p.  485. 

«6  Jones  V.  Rimmer,  14  Ch.  D.  588,  592;  Redgrave  v.  Hurd,  20 
11 


162  FRAUDULENT  SALES.  [§  105. 

The  vendor  may  lawfully  commend  his  goods,  even  to 
exaggeration,  provided  he  do  not  make  any  false  repre- 
sentation as  to  matters  of  fact.  The  mere  expression  of  an 
opinion  in  regard  to  the  qualities  or  value  of  an  article 
will  not,  as  a  rule,  constitute  an  element  of  fraud.  The 
distinction  in  law  is  between  the  expression  of  an  opinion 
and  the  statement  of  a  fact.^'' 

2.  Intention  to  deceive. — An  essential  element  of  a 
fraudulent  sale  is  an  intention  to  deceive;  or,  what  is 
equally  culpable,  a  reckless  false  statement  of  facts  to  in- 
duce a  purchase,  without  knowledge  of  the  truth  or  falsity 
of  the  statement.  Fraud  cannot  be  predicated  of  repre- 
sentations which  the  vendor  honestly  believes  to  be  true, 
albeit  they  are  false  in  fact.  But  a  party  has  no  moral 
or  legal  right  to  make  representations  of  the  truth  or  fals- 
ity of  facts  of  which  he  is  ignorant,  and  if  such  representa- 
tions prove  false,  he  will  be  held  responsible  as  for  an  in- 
tentional misrepresentation.®^ 

3.  Reliance  upon  the  representations. — To  sustain  a 
charge  of   fraud,  it  must  appear  that  the   false  represen- 


Ch.  D.  1,  13;  Hitchins  v.  Pettengill,  58  N.  H.  3 ;  Central  Railway 
V.  Hisch,  Law  Rep.  2,  H.  L.  99,  120;  2  Chit.  Cont.  (11  Am.  Ed.), 
1040,  1041;  Leake,  Cont.  (2  Ed.),  380-383;  Bishop,  Cont.  (2nd 
Enl.  Ed.),  §  655. 

67  Ellis  V.  Andrews,  56  N.  Y.  83;  Bishop  v.  Small,  63  Me.  12 
Somers  v.  Richards,  46  Vt.  170;  Homer  v.  Perkins,  124  Mass.  431 
Buschman  v.  Cold,  52  Md.  202,  207;  Sledge  v.  Scott,  56  Ala.  202 
Gordon  v.  Butler,  105  U.  S.  553;  Graffenstein  v.  Epstein,  23  Kan 
443;  Tiede.  Sales,  §§  158,  166;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  664 
2  Kent,  Com.  pp.  485-487. 

68  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  661;  Tiede,  Sales,  §  160; 
French  v.  Vining,  102  Mass.  132;  Weeks  v.  Burton,  7  Vt.  67;  Cow- 
ley V.  Smith,  46  N.  J.  L.  380;  Boyd  v.  Browne,  6  Barr,  310;  Seller 
V.  Clelland,  2  Col.  532;  Weir  v.  Bell,  L.  R.  3  Ex.  D.  238;  Mitchell 
V.  Zimmerman,  4  Tex.  75;  Grim  v.  Byrd,  32  Gratt.  293;  Parmlee 
V.  Adolph,  28  Ohio  St.  10. 


§  105.]  FRAUDULENT  SALES.  163 

tations  were  relied  upon  by  the  party  whom  they  were  in- 
tended to  influence,  otherwise  he  could  not  complain  of 
having  been  deceived,  or  defrauded,  by  such  represen- 
tations. It  is  not  necessary,  however,  that  the  misrepresen- 
tations should  have  constituted  the  sole  inducement  to  the 
contract,  but  to  sustain  the  charge  of  fraud,  it  must  appear 
that  the  false  representations  were  so  far  influential,  that 
without  them  assent  to  the  contract  would  not  have  been 
given.®^ 

4.  Damage  sustained. — Another  essential  element  in  an 
actionable  fraud,  is  the  resulting  damage  sustained  by  the 
party  deceived.  No  matter  how  gross  the  fraud,  if  no 
damage  ensues  no  cause  of  action  arises.  The  doctrine 
applicable  is  tersely  state  by  Lord  Coke  thus:  "Fraud 
without  damage,  or  damage  without  fraud,  gives  no  cause 
of  action."'^" 

5.  Fraud  on  the  vendor. — What  has  now  been  said  of 
fraudulent  sales  relates  mainly  to  frauds  practiced  by  the 
vendor  upon  the  buyer.  The  latter  may  become  the  fraud- 
ulent party  to  the  contract,  and  the  former  his  victim. 
Frauds  of  the  buyer  are  various  in  forms  and  modes,  but 
all  are  schemes  to  procure  from  the  vendor  his  goods  with- 
out payment  of  the  purchase  price.  In  essence  and  moral 
quality,  they  constitute  the  crime  of  larceny  in  the  guise 
of  honest  traffic.    The  effect  of  the  buyer's  fraud  upon  the 


89  Bishop,  Cont.  (2ncl  Enl.  Ed.),  §§  653,  654;  Tiede.  Sales,  §  161; 
Hull  V.  Fields,  76  Va.  591 ;  Winter  v.  Bandell,  30  Ark.  362 ;  Greg- 
ory V.  Schoenell,  55  Ind.  101;  Smith  v.  Hughes,  6  Q.  B.  597;  2 
Sch.  Pers.  Prop.  p.  632. 

70  3  Bulst.  95.  Tiede.  Sales,  §  162;  Smith  v.  Kay,  7  H.  L.  Cas. 
774;  Atwood  v.  Small,  6  Clark  &  F.  443;  Weaver  v.  Wallace,  9 
N.  J.  L.  251;  Neidefer  v.  Chastain,  71  Ind.  363;  Morrison  v.  Lods, 
39  Cal.  385;  Phipps  v.  Buckman,  30  Pa.  St.  402;  Hanson  v.  Edger- 
ton,  29  N.  H.  357 ;  Young  v.  Hall,  4  Ga.  95 ;  Castleman  v.  Griffin,. 
13  Wis.  535. 


164  FRAUDULENT  SALES.  [§  105. 

contract  is  substantially  the  same  as  that  of  the  vendor,  to 
render  it  void  ah  initio,  or  voidable.''^ 

The  doctrine  is  often  met  with  in  the  books,  that  in  case 
of  a  fraudulent  purchase  the  title  does  not  pass  from  the 
vendor  to  the  vendee.  This  is  not  an  accurate  statement 
of  the  law.  A  distinction  should  be  made  between  a  sale 
to  a  fraudulent  purchaser,  and  a  mere  delivery  of  goods 
into  his  possession.  Or,  differently  stated,  a  distinction 
between  a  case  where  the  owner  intends  to  transfer  both 
title  and  possession,  and  where  he  only  intends  to  transfer 
the  possession.  In  the  former  case  there  is  a  sale,  however 
fraudulently  procured;  in  the  latter  not.  This  distinction 
is  manifest  in  view  of  the  effect  of  a  transfer  of  the  goods 
by  the  fraudulent  vendee  to  a  third  party,  a  bona  fide 
purchaser.  If  the  vendee  takes  both  title  and  possession, 
and  transfers  the  goods  to  a  bona  fide  purchaser  before  dis- 
affirmance of  the  contract  by  the  vendor,  such  purchaser 
will  take  a  good  title  which  he  can  maintain  against  the 
rights  of  the  original  vendor.  On  the  contrar>%  if  the 
original  transferee  took  possession  only,  the  vendor  not  in- 
tending to  pass  title,  he  cannot  convey  a  title  to  any- 
body, and  for  the  sufficient  reason  that  he  has  none  to 
convey.  It  may  be  difficult  to  see,  at  a  glance,  how  the 
defrauded  vendor  may  reclaim  his  property  from  his 
vendee  when  the  title  has  passed  to  the  latter,  so  that  he 
could  transfer  a  good  title  to  a  third  party.  Chief  Justice 
Shaw  speaks  of  this  difficulty  in  Hoffman  v.  Noble,'^^  where 
he  says:  "It  is  a  well  established  rule,  that  goods  ob- 
tained by  fraud  in  the  sale,  as  by  false  representations, 
may  be  reclaimed  by  the  vendor.  This  does  not  proceed 
on  the  ground  that  the  property  in  the  goods  does  not  pass 

7iTiede.  Sales,  §  168;  Benj.  Sales,  p.  366. 
T2  6  Met.  73. 


§  105.]  FRAUDULENT   SAI.ES.  165 

by  the  sale,  but  that  the  dishonest  purchaser  shall  not  hold 
it  against  the  deceived  vendor."  But  when  such  a  pur- 
chaser transfers  the  goods  to  a  third  party,  a  bona  fide  pur- 
chaser, the  superior  equity  of  the  latter  will  prevail  over 
the  legal  rights  of  the  vendor.'^^ 

Cases  sometimes  occur  in  which  a  buyer  purchases  goods 
with  the  intention  of  not  paying  for  them.  The  doctrine 
may  be  regarded  as  established  by  the  weight  of  authority, 
that  in  such  cases  the  purchase  is  fraudulent  and  voidable, 
although  no  false  representations  were  made,  or  active 
fraud  committed  by  the  vendee.  It  should  be  noticed  that 
to  constitute  this  species  of  fraud  the  purchaser,  at  the 
time  of  the  sale,  must  have  an  affirmative  intention  not  to 
pay  for  the  goods.  A  mere  negative  or  purposeless  con- 
dition of  mind  will  not  suffice,  but  a  design  to  defraud  may 
be  inferred  from  the  conduct  and  circumstances  of  the 
buyer.^* 

6.  Fraud  on  creditors. — We  have  seen^^  that  one  of  the 
limitations  to  the  absolute  ownership  of  property,  is  its 
liability  for  the  satisfaction  of  the  just  debts  of  the  owner. 
He  cannot  legally  alienate  it  by  gift,  or  otherwise  dispose 
of  it,  in  fraud  of  his  creditors. 

''^Benj.  Sales,  p.  366,  et  seq.;  Tiede.  Sales,  §  168;  Stevenson  v. 
Newnham,  13  C.  B.  285 ;  22  L.  J.  C.  P.  10 ;  Pease  v.  Gloahec,  L.  R. 
1  P.  C.  220;  Kingsford  v.  Merry,  11  Ex.  577;  25  L.  J.  Ex.  166; 
Oakes  v.  Turquand,  L.  R.  2  H.  L.  325 ;  Naugatuck  Cutlery  Co.  v. 
Babcock,  22  Hun.  481;  Van  Nest  v.  Conover,  20  Barb.  547;  Butler 
V.  Hildreth,  5  Met.  49 ;  Buckley  v.  Morgan,  46  Conn.  393 ;  Dibley 
V.  Sheldon,  10  Blatch.  178;  Easter  v.  Allen,  8  Allen,  7;  Pringle  v. 
Phillips,  5  Sandf.  157;  Devoe  v.  Brandt,  53  N.  Y.  462;  Paddon  v. 
Taylor,  44  N.  Y.  371. 

74Tiede.  Sales,  §  170;  Hennequin  v.  Naylor,  24  N.  Y.  139;  Dow 
V.  Sanborn,  3  Allen,  181 ;  Donaldson  v.  Farwell,  93  U.  S.  631 ; 
Wright  V.  Brown,  67  N.  Y.  1 ;  Farges  v.  Pugh,  93  N.  C.  31 ;  Mul- 
liken  v.  Millar,  12  R.  I.  296. 

''^Supra,  §  5. 


166  IIvLEGAIv  CONTRACTS  OF  SALE.  [§  106, 

The  English  statutes  on  this  subject^*'  have  been  incor- 
porated, in  substance,  into  the  statutes  of  most,  if  not  all, 
of  the  States  of  this  country.  They  expressly  declare  void 
all  conveyances  made  with  intent  to  "hinder,  delay,  or  de- 
fraud creditors."  These  statutes  embody,  clearly  express, 
and  re-enforce  by  legislative  sanction,  a  principle  of  the 
common  law.  By  virtue  of  this  principle,  a  contract  un- 
impeachable by  the  parties,  may  be  void  as  against  existing 
creditors.  And  a  transfer  may  be  avoided  by  subsequent 
creditors,  even,  where  it  is  made  to  appear  that  the  con- 
veyance was  made  for  the  pupose  of  defrauding  such 
creditors,  as  a  voluntary  conveyance  with  the  view  of 
shielding  the  property  from  liability  for  anticipated  in- 
debtedness.''^ 

Discussion  of  subordinate  and  incidental  rules  applicable 
to  the  species  of  frauds  under  consideration  is  necessarily 
omitted  under  the  prescribed  limitations  of  this  treatise. 
The  reader  will  find  these  rules  fully  discussed  in  the  text- 
books hereunder  named,  and  in  the  adjudications  therein 
cited. 

§  106.  niegal  contracts  of  sale. — Illegality  of  consid- 
eration has  been  already  noticed.''^  Illegality  of  subject- 
matter,  purpose,  or  tendency,  will  now  be  considered. 

The  general  doctrine  on  this  subject  is  concisely  and 
comprehensively  stated  by  Mr.  Bishop  as  follows:  "Any 
act  which  is  forbidden  either  by  the  common  or  the  stat- 
utory law — whether  it  is  malum  in  se,  or  merely  malum 


76  13  Eliz.  ch.  5,  and  27  Eliz.  ch.  4. 

"Benj.  Sales,  p.  412,  et  seq.;  Tiede.  Sales,  §  174;  2  Kent,  Com. 
p.  440,  et  seq.;  3  Pars.  Cont.  (7  Ed.),  pp.  447,  n.  (g),  440-443: 
Bishop  Cont.  (2nd  Enl.  Ed.),  §§  1200-1213;  2  Sch.  Pers.  Prop, 
p.  101,  et  seq. 

"  §  104,  sub.  3. 


§  107.]  CONDITIONS,   ETC.  167 

prohibitum;  indictable,  or  only  subject  to  a  penalty  or 
forfeiture;  or  however  otherwise  prohibited  by  a  statute, 
or  the  common  law — cannot  be  the  foundation  of  a  valid 
contract;  nor  can  anything  auxihary  to,  or  promotive  of, 
such  act.  And  this  doctrine  is  the  same  in  the  equity  tri- 
bunals as  in  those  of  law.''^ 

If  the  contract  of  sale  be  void  from  any  of  the  causes 
now  mentioned,  neither  party  can  maintain  an  action  upon 
it.  Ex  turpi  causa,  non  oritur  actio  is  the  maxim  that  ap- 
plies. Nor  will  either  party  be  relieved  from  the  effect  of 
executing  the  sale.  The  vendor  will  be  at  liberty  to  retain 
the  price  if  it  be  paid,  and  the  buyer  may  hold  the  goods 
if  delivered.®" 

§  107.  Conditions,  and  conditional  sales. — Of  conditions 
affecting  the  sale  and  transfer  both  of  personal  and  real 
property,  there  are  three  kinds,  namely:  Conditions  pre- 
cedent, subsequent,  and  concurrent.  If  by  the  terms,  or 
true  construction,  of  the  contract,  the  property  in  the 
subject  of  the  sale  does  not  vest  in  the  vendee  until  per- 
formance of  the  condition,  it  is  a  condition  precedent.     If 

79Bishop,  Cont.  (2nd  Enl.  Ed.),  §  171;  and  see  Id.  §  169,  et 
seq.;  Tiede.  Sales,  §  290,  et  seq.;  Benj.  Sales,  p.  462,  et  scq.;  2 
Sch.  Pers.  Prop.  p.  643,  et  seq.;  Cannan  v.  Bryce,  3  B.  &  Aid.  179, 
183,  184;  White  v.  Buss,  3  Cush.  448,  450;  Poplett  v.  Stockdale, 
Ryan  &  M.  N.  P.  iZ7 ;  Bartlett  v.  Vinor,  Carth.  251;  Fergusson  v. 
Norman,  5  Bing.  N.  C.  76;  Cook  v.  Phillips,  56  N.  Y.  310;  Hatha- 
way V.  Moran,  44  Me.  67;  Carpenter  v.  Beer,  Comb.  246;  Stanley 
V.  Nelson,  28  Ala.  514;  Hall  v.  Mullin,  5  Har.  &  J.  190,  193;  Sykes 
V.  Beadon,  11  Ch.  D.  170;  Hotham  v.  East  India  Co.,  1  Doug.  272, 
277. 

soMontefiori  v.  Montefiori,  Wm.  Bl.  Z6i;  Peck  v.  Burr,  10  N.  Y. 
294 ;  Horton  v.  Buffington,  105  Mass.  399 ;  Moore  v.  Murdock,  26 
Cal.  514;  Shuman  v.  Shuman,  27  Pa.  St.  90;  O'Donnell  v.  Sweeney, 
5  Ala.  467;  Tucker  v.  West,  29  Ark.  386;  Finn  v.  Donahue,  35 
Conn.  216;  Ryno  v.  Darby,  20  N.  J.  Eq.  231. 


168  CONDITIONS,   ETC.  [§  107. 

the  condition  be  such  that  the  effect  of  its  nonperformance 
will  be  to  defeat  or  impair  an  estate  or  interest  already 
vested,  it  is  a  condition  subsequent.  If,  by  the  terms,  or 
true  construction,  of  the  contract,  its  execution  or  perform- 
ance by  the  parties  simultaneously  is  required  or  intended, 
the  condition  is  termed  mutual  or  concurrent,  and  under 
such  a  condition  neither  party  will  be  heard  to  complain  of 
its  non-performance  by  the  other,  without  performance,  or 
an  offer  of  performance,  on  his  own  part. 

A  promise,  statement,  or  representation,  made  before,  or 
at  the  time  of  the  contract,  is  not  necessarily  a  part  of  it 
in  contemplation  of  law,  but  may  be  merely  an  inducement, 
or  something  collateral,  to  the  contract.  If  it  be  an  in- 
tegral and  essential  part  of  the  contract,  the  question  may 
arise  whether  it  is  a  dependent,  or  an  independent,  coven- 
ant. If  the  former,  it  becomes  in  effect  a  condition  preced- 
ent or  concurrent,  the  performance  of  which  must  be  made 
or  tendered  by  the  covenantor  before  he  can  rightfully  claim 
performance  by  the  other  party  to  the  contract.  If  the 
latter,  each  party  is  bound  to  perform  on  his  part  without 
regard  to  performance  or  non-performance  of  the  other 
party ;  or,  failing,  he  will  be  liable  to  an  action  for  a  breach 
of  contract;  and  non-performance  by  the  other  party  will 
entitle  him  to  damages  for  the  breach. 

The  distinctions  between  the  several  kinds  of  conditions 
often  present  difficulties  in  construction,  which  have  pro- 
duced some  confusion  and  conflict  in  the  adjudications. 
And,  indeed,  the  whole  subject  of  conditions  is  generally 
regarded  as  "subtle  and  perplexing;"  but  the  authorities 
hereunder  cited  will,  it  is  believed,  furnish  the  inteUigent 
and  discriminating  student  and  practitioner  with  ample 
means  of  mastering  all  the  difficulties  involved.*^ 

81  Tiede.   Sales,  §  200,  et  seq.;   Benj.  Sales,  p.  507,  et  scq.;  Am. 


§  108.]  WARRANTY.  169 

§  108.  Warranty. — A  warranty  in  the  sale  of  goods  is 
a  collateral  undertaking,  forming  a  part  of  the  contract 
by  agreement  of  the  parties,  express  or  implied,  but  in  the 
absence  of  such  agreement,  it  is  not  an  essential  element 
of  the  contract,  for  a  sale  may  be  complete  without  a  war- 
ranty. Antecedent  representations  rnade  by!  the  vendor 
as  an  inducement  to  the  buyer,  but  not  entering  into  and 
forming  part  of  the  contract,  are  not  warranties.  On  the 
other  hand,  a  representation  made  during  the  negotiation 
and  before  the  conclusion  of  the  bargain,  may,  by  the  ex- 
press or  implied  agreement  of  the  parties,  enter  into  and 
become  a  part  of  the  contract,  and  a  warranty.^^  A  war- 
ranty given  after  the  consummation  of  the  sale,  without 
some  new  consideration,  is  void.*^ 

There  are  express,  and  implied,  warranties.  An  express 
warranty  is  the  direct  statement  of  a  material  fact,  either 
past  or  existing.  But  no  form  of  words  is  requisite  to  con- 
stitute a  warranty,  a  mere  affirmation  being  sufficient  when 
it  is  so  intended.  For  determining  whether  an  affirmation 
amounts  to  a  warranty,  this  test  has  been  given:  "Did  the 
vendor  assume  to  assert  a  fact  of  which  the  buyer  was 

n.  p.  551,  et  seq.;  2  Sch.  Pers.  Prop.  p.  273,  et  seq.;  Hickman  v. 
Shimp,  109  Pa.  St.  16;  Redman  v.  Aetna  Ins.  Co.,  49  Wis.  438; 
Fishback  v.  Van  Dusen,  ii  Minn.  Ill,  116;  Cadwell  v.  Blake,  6 
Gray,  402;  Chapin  v.  School  District,  35  N.  H.  450;  Sedden  v. 
Prindle,  17  Barb.  466;  N.  &  N.  W.  R.  R.  Co.  v.  Jones,  2  Codd.  584; 
Jones  V.  Barkley,  2  Doug.  684-691. 

82Benj.  Sales,  p.  563;  Tiede.  Sales,  §  180;  Foster  v.  Smith,  18 
C.B.  156;  Mondell  v.  Steele,  8  M.  &  W.,  858;  Hopkins  v.  Tanque- 
ray.'lS  C.  B.  130;  23  L.  J.  C.  P.  162;  McFarland  v.  Newman,  9 
Watts,  55. 

83  Bryant  v.  Crosby,  40  Me.  9;  James  v.  Bocage,  45  Ark.  284; 
Bloss  V.  Kittridge,  5  Vt.  28;  Summers  v.  Vaughn,  35  Ind.  323; 
Morehouse  v.  Comstock,  42  Wis.  624;  Hogins  v.  Plympton,  11 
Pick.  99. 


170  WARRANTY.  [§  108, 

ignorant,  or  merely  give  an  opinion  or  judgment  upon  a 
matter  of  which  the  buyer  could  as  well  judge  as  the  ven- 
dor?"" An  implied  warranty  is  one  deduced  by  the  law 
when  the  execution  of  the  contract,  and  the  evidence,  jus- 
tify or  demand  it.  As  a  rule,  the  existence  of  an  express 
warranty  excludes  an  implied  one,  but  from  the  operation 
of  this  rule  are  excepted  cases  where  the  former  relates  to 
quality,  and  the  latter  to  title  in  which  cases  the  co-exist- 
ence of  both  in  the  same  contract  involves  no  inconsistency. 

It  is  the  well  established  doctrine  in  this  country  that  in 
the  sale  by  a  vendor  as  his  own,  of  an  article  in  his  posses- 
sion, there  is  an  implied  warranty  of  title,  but  otherwise 
when  the  property  is  not  in  his  possession  at  the  time  of 
the  sale.*° 

As  a  general  rule,  there  is  no  implied  warranty  of  quality 
in  the  sale  of  personal  property,  where  the  buyer  has  an 
opportunity  to  inspect  the  goods  and  determine  the  quality 
for  himself.  In  the  absence  of  fraud  and  of  an  express 
warranty,  each  of  the  parties  relying  upon  his  own  judg- 
ment, the  maxim  caveat  emptor  applies.*®  But  to  the 
general  rule  there  are  some  exceptions. 

8*  Pasley  v.  Freeman,  3  T.  R.  51;  Cross  v.  Gardner,  Carth.  90; 
Medina  v.  Stoughton,  1  Ld.  Raym.  593 ;  Powell  v.  Barham,  4  A.  & 
E.  473 ;  Hahn  v.  Doolittle,  18  Wis.  196 ;  Marsh  v.  Webber,  13  Minn. 
109;  Tewksbury  v.  Bennett,  31  la.  83;  Gifford  v.  Carvill,  29  Cal. 
589 ;  Miller  v.  Young,  33  111.  354. 

85  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  243;  2  Kent,  Com.  p.  478; 
Wiliamson  v.  Sammons,  34  Ala.  691;  Linton  v.  Porter,  31  111.  107; 
Chancellor  v.  Wiggins,  4  B.  Monr.  201 ;  Sherman  v.  Champlain 
Transp.  Co.,  31  Vt.  162;  Fawcett  v.  Osborn,  32  111.  411;  Word  v. 
Cavin,  1  Head,  506;  Lackey  v.  Stouder,  2  Ind.  376;  Scranton  v. 
Clark,  39  N.  Y.  220;  Huntington  v.  Hall,  36  Me.  501;  Tiede.  Sales, 
§  185;  Benj.  Sales  (Ed.  1888),  p.  564,  et  seq.;  Am.  n.  p.  614,  et  seq. 

86  Tiede.  Sales,  §  187;  Benj.  Sales,  p.  644,  et  seq.;  Bishop,  Cent.. 
(2nd  Enl.  Ed.),  §  244;  2  Kent,  Com.  p.  478,  et  seq.;  2  Sch.  Pers.. 
Prop.  p.  353. 


§  108.]  WARRANTY.  171 

1.  Sales  by  sample. — In  a  sale  by  sample,  intended  by 
the  parties  as  such,  there  is  an  implied  warranty  that  the 
bulk  of  the  goods  shall  be  of  equal  quality  to  the  Sample.*^ 

2.  Sales  by  description. — Where  the  buyer  has  no  oppor- 
tunity to  inspect  the  goods,  either  in  bulk  or  sample,  and 
the  vendor's  discription  is  positive,  definjite  and  exact, 
there  is  an  implied  warranty  that  the  goods  will  answer  the 
description,  both  in  kind  and  quality.®* 

3.  Merchantability ;  fitness  for  a  particular  use. — In  a 
sale  by  a  manufacturer,  there  is  an  implied  warranty  that 
the  goods  are  merchantable,  such  as  are  free  from  serious 
defects,  and  will  command  the  ordinary  market  price. 
And  where  goods  are  bought  for  a  particular  purpose  or 
use,  known  to  the  vendor,  and  are  selected  by  him,  the 
buyer  not  relying  on  his  own  judgment,  there  is  an  implied 
warranty  that  the  articles  shall  be  fit  for  such  purpose  or 
use.  But  an  express  warranty  of  quality  by  a  manufacturer 
will  exclude  an  implied  warranty  of  merchantability.** 

4.  Sales  of  provisions. — In  the  United  States  it  is  held, 
that  in  a  sale  of  provisions  for  immediate  domestic  con- 
sumption, there   is  an  implied  warranty  that  the  articles 


*^  Merriman  v.  Chapman,  32  Conn.  146 ;  Webster  v.  Granger,  78 
111.  230;  Gill  v.  Kauffman,  16  Kan.  571;  Gunther  v.  Atwell,  19  Md. 
157;  Gallagher  v.  Waring,  9  Wend.  20;  Barnard  v.  Kellogg,  10 
Wall.  383 ;  Leonard  v.  Fowler,  44  N.  Y.  289. 

88  Hastings  v.  Lovering,  2  Pick.  215;  Hogins  v.  Plympton,  11 
Pick.  97;  Behn  v.  Bumess,  3  Best  &  Smith,  751;  Wolcott  v.  Mount, 
36  N.  J.  L.  262;  Maxwell  v.  Lee,  27  N.  W.  Rep.  196. 

89  Howard  v.  Hoey,  23  Wend.  350 ;  Gallagher  v.  Waring,  9  Wend. 
20,  28;  Merriam  v.  Field,  24  Wis.  640;  McChing  v.  Kelley,  21  Iowa, 
508;  Mesner  v.  Granger,  4  GHm.  69;  Cullen  v.  Bimm,  37  Ohio  St. 
236 ;  Wilcox  v.  Hall,  53  Ga.  635 ;  Brantley  v.  Thomas,  22  Tex.  270 ; 
Deeming  v.  Foster,  42  N.  H.  165 ;  Walker  v.  Pue,  57  Md.  155 ;  Port 
Carbon  Iron  Co.  v.  Groves,  68  Pa.  St.  149;  Tilton  Safe  Co.  v.  Tis- 
dale,  48  Vt.  83 ;  De  Witt  v.  Berry,  134  U.  S.  306. 


172  PERFORMANCE  OF   CONTRACT.  [§  109. 

are  sound,  wholesome,  and  fit  for  food.®**  But  as  between 
dealers  where  provisions  are  sold  as  merchandise  and  not 
for  immediate  consumption  by  the  purchaser,  there  is  no 
implied  warranty  of  fitness  for  use.®^ 

5.  Sale  of  commercial  paper. — In  the  sale  of  commercial 
paper  there  is  an  implied  warranty  by  the  vendor  that  the 
signatures  are  genuine,  and  the  signers  competent  to  con- 
tract, but  the  warranty  does  not  extend  to  the  pecuniary 
responsibility  or  solvency  of  the  signers.^^ 

It  may  be  regarded  as  an  established  doctrine,  that  an 
express  general  warranty  does  not  cover  patent  defects. 
Where  such  defects  exist  the  buyer  must  exact  a  special 
warranty  against  them,  or  submit  to  the  application  of  the 
rule,  caveat  emptor.^^ 

§  109.  Delivery  in  performance  of  the  contract. — Deliv- 
ery as  related  to  the  transfer  of  title  has  already  been  con- 
sidered,^* and  it  remains  to  notice  briefly  the  rules  govern- 
ing delivery  of  possession  in  performance  of  the  execu- 
tory contract  of  sale.  When  the  contract  is  complete, 
and  the  buyer  has  complied,  or  is  ready  to  comply,  with  the 
conditions  precedent  or  concurrent,  it  becomes  the  im- 
mediate duty  of   the  vendor  to  deliver  possession  of  the 


9°  Morehouse  v.  Comstock,  42  Wis.  626 ;  Hoover  v.  Peters,  13 
Mich.  51;  Van  Bracklin  v.  Fonda,  12  Johns.  468;  Devine  v. 
McCormick,  50  Barb.  116;  Fairbanks  Canning  Co.  v.  Metzgar,  118 
N.  Y.  267. 

91  Moses  V.  Meed,  5  Denio,  617;  1  Denio,  378;  Howard  v.  Emer- 
son, 110  Mass.  321;  Ryder  v.  Neitge,  21  Minn.  70;  Humphreys  v. 
Comhne,  8  Blatchf.  516;  Lukens  v.  Freiund,  27  Kan.  664;  Giroux 
V.  Stedman,  145  Mass.  439. 

92Benj.  Sales,  Am.  n.  pp.  620,  621;  1  Dan.  Neg.  Inst.  §  670. 

93Tiede.  Sales,  §  195;  Benj.  Sales,  pp.  567-569. 

9*  Supra,  §  102. 


§  109.]  PERFORMANCE  OF    CONTRACT.  173 

goods  in  the  performance  of  the  contract,  in  the  absence 
of  stipulations  to  the  contrary. 

1.  How,  and  where,  delivery  to  he  made. — In  the  absence 
of  an  express  agreement  in  respect  to  delivery,  the  vendor 
is  under  no  obHgation  to  transport  the  goods  to  the  pur- 
chaser. He  is  only  required  to  hold  the  goods  ready  for 
delivery  to  the  buyer,  or  his  order,  on  demand.  And  if  the 
vendee  fails  to  call  for  the  goods,  and  they  remain  in  the 
possession  of  the  vendor,  he  may  recover  the  price  in  an 
action  for  goods  bargained  and  sold.®^  When  the  parties 
have  not  agreed  upon  a  place  of  delivery,  the  goods  must 
be  held  ready  for  delivery  at  the  place  where  they  were 
at  the  time  of  sale.  Should  tlie  vendor  attempt  to  deliver 
them  elsewhere  he  would  incur  all  the  attendant  risk,  and 
be  liable  to  the  vendee  for  the  increased  expense,  if  any, 
arising  from  such  unauthorized  delivery.^® 

Obviously  if  a  place  of  delivery  be  designated  by  the 
parties,  or  either  of  them  thereto  authorized  by  the  con- 
tract, it  cannot  rightfully  be  made  elsewhere,  without  the 
consent  of  all  the  parties.  If  the  buyer  is  to  designate  the 
place,  and  he  neglects  to  do  so  within  a  reasonable  time, 
it  will  excuse  the  vendor  from  making  delivery,  and  enable 
him  to  maintain  an  action  for  the  purchase  price  while  the 
goods  remain  in  his  possession.^^  If  the  vendor  is  to  select 
the  place  of  delivery,  it  becomes  his  duty  to  give  the  vendee 


95  Kohl  V.  Lindley,  39  111.  105 ;  Morse  v.  Sherman,  106  Mass.  430, 
432;  Wade  v.  Moffit,  21  111.  110;  74  Am.  Dec.  79;  Frazier  v.  Sim- 
mons, 139  Mass.  531,  535;  Turner  v.  Langdon,  112  Mass.  265; 
Stearns  v.  Washburn,  7  Gray,  187;  Allingham  v.  O'Mahoney,  1 
Pugsl.  326. 

9"  Rice  V.  Churchill,  2  Den.  145 ;  Brownson  v.  Gleason,  7  Barb. 
472;  Middlesex  Co.  v.  Osgood,  4  Gray,  429;  Barr  v.  Ayers,  3  Watts 
&  S.,  299;  Kraft  v.  Hurtz,  11  Mo.  109;  Miles  v.  Roberts,  34  N.  H. 
253 ;  2  Sch.  Pers.  Prop.  p.  400. 

97  Hunter  v.  Westell,  84  N.  Y.  594,  38  Am.  Rep.  544;   Smith  v. 


174  PERFORMANCE  OF  CONTRACT.  [§  109. 

reasonable  notice  in  advance  of  the  place  selected,  so  that 
delivery  there  will  transfer  the  possession  of  the  goods  to 
the  latter.^* 

2.  Delivery  to  a  common  carrier. — Where  the  contract 
binds  the  vendor  to  send  the  goods  to  the  purchaser,  de- 
livery to  a  common  carrier  is  a  compliance,  it  being  in  con- 
templation of  law  a  delivery  to  the  purchaser  himself. 
The  carrier,  in  such  cases,  is  the  bailee  of  the  purchaser,  or 
consignee.®*  But  where  the  contract  requires  the  seller  to 
make  the  common  carrier  his  own  agent,  or  he  does  so 
voluntarily,  transfer  of  possession  and  risk  from  the  ven- 
dor to  the  vendee  will  not  take  place,  xmtil  the  goods  have 
been  actually  delivered  by  the  carrier  to  the  vendee  or  his 
agent.  ^ 

3.  Quantity  to  he  delivered. — A  contract  for  a  specific 
quantity  will  not  be  satisfied  by  a  tender  or  delivery  of 
more  or  less ;  or  by  sending  the  goods  bargained  for  mixed 
with  other  goods,  thus  compelling  the  buyer  to  select  and 
separate  for  himself.  In  either  case  the  purchaser  may 
rightfully  refuse  to  accept  the  whole.* 

4.  Time  of  delivery. — In  the  absence  of  a  stipulated  time 
for  delivery,  the  law  prescribes  a  reasonable  time.  What 
is  a  reasonable  time  becomes  a  question  of  fact  for  the  jury, 
to  be  determined  by  the  circumstances  of  each  casei.' 
Where  the   contract   expresses   the  time   of    delivery,   the 


Wheeler,  5  Gray,  309;  Boyd  v.  Gunnison,  14  W.  Va.  1;  Brunshill 
V.  Muir,  15  Up.  Can.  Q.  B.  213;  Bolton  v.  Riddle,  35  Mich.  13. 

9*  Rogers  v.  Van  Hoesen,  12  Johns.  221 ;  Davies  v.  McLean,  21 
W.  R.  264,  28  L.  T.  (N.  S.),  113. 

»9Tiede.  Sales,  §  95;  Benj.  Sales,  pp.  146,  647. 

^  Citations  last  supra;  and  see  Dunlop  v.  Lambert,  6  Clark  &  F. 
600;  Perkins  v.  Eckert,  55  Cal.  400;  Hall  v.  Gaylor,  Z7  Conn.  550. 

-  Benj.  Sales,  p.  642,  ct  scq.;  Tiede.  Sales,  §  101. 

3  2  Sch.  Pers.  Prop.  p.  401,  et  seq.;  Tiede.  Sales,  §§  98-100;  Ter- 
williger  v.  Knapp,  2  E.  D.  Sm.  86. 


§  109.]  PERFORMANCE   OF   CONTRACT.  175 

question  involved  is  one  of  construction,  and  hence  a  ques- 
tion of  law  for  the  court,  and  not  of  fact  for  the  jury.* 

5.  Actual,  constructive,  and  symbolical  delivery. — An 
actual  delivery  is  the  "manual  or  bodily  transfer  of  pos- 
session." Constructive  delivery  is  the  intentional  transfer 
of  title  and  possession  in  place  of  actual,  by  agreement  of 
the  parties,  or  where  actual  delivery  is  impossible.  As 
examples  of  constructive  delivery  may  be  mentioned  cases 
where  the  goods  are  in  the  actual  possession  of  the  vendee 
at  the  time  of  the  sale;  where  it  is  the  intention  of  the 
parties  that  the  goods  shall  remain  in  the  possession  of  the 
vendor  as  bailee  after  the  sale;  where  the  goods  are  in 
possession  of  a  warehouseman,  or  other  third  party,  at  the 
time  of  sale,  and  he  thereafter  holds  them  as  bailee  of 
the  purchaser;  where  the  goods  are  at  sea,  or  otherwise 
beyond  the  power  of  the  vendor  to  make  actual  delivery; 
where  the  goods  are  too  ponderous  for  possible  or  conven- 
ient actual  delivery;  and  where  the  subject  of  the  sale  is 
growing  crops,  not  ripe  for  actual  delivery.  Symbolical 
delivery  is  the  actual  delivery  of  something  as  the  repre- 
sentative or  symbol  of  the  property  sold,  as  the  key  of  the 
warehouse  where  the  goods  are  stored;  the  bill  of  sale  of  a 
vessel  and  cargo  at  sea;  and,  indeed,  in  all  cases  of  impos- 
sible or  impracticable  delivery.^ 

6.  Acceptance. — Acceptance  is  the  complement  of  de- 
livery, both  being  essential  to  a  full  performance  of  the 
contract.  This  subject  was  discussed  under  the  require- 
ments of  the  Statute  of   Frauds,®  and  requires  but  brief 

♦Benj.  Sales,  p.  638;  Atwood  v.  Clark,  2  Me.  249;  Cameron  v. 
Wells,  30  Vt.  633. 

»Tiede.  Sales,  §§  104,  105;  Benj.  Sales,  p.  648;  2  Kent,  Com. 
p.  500;  1  Pars.  Cont.  (7  Ed.),  p.  531;  2  Sch.  Pers.  Prop.  p.  408, 
et  seq. 

•  Supra,  §  102,  sub.  5. 


176  STOPPAGE  OF  TRANSITU.  [§  111. 

additional  reference  here.  The  buyer  has  a  reasonable 
time  after  the  receipt  of  goods  to  inspect,  accept  or  reject 
them.^  An  objection  to  goods  for  one  reason  may  be  a 
waiver  of  any  other  reasons.* 

§  110.  The  vendor's  lien. — A  lien  is  a  "right  to  hold 
goods,  the  property  of  another,  in  security  for  some  debt, 
duty,  or  other  obligation."^  The  vendor  of  personal  prop- 
erty, still  in  his  possession,  has  a  lien  upon  it  as  security 
for  the  purchase  price.^*'  But  this  lien  may  be  waived  or 
lost  either  expressly  or  by  implication.  A  sale  on  credit  is 
a  waiver.  The  receipt  of  other  security  for  the  payment  of 
the  purchase  price  is  a  waiver  by  implication.  Delivery  of 
the  goods  is  a  waiver.  A  legal  tender  of  payment  by  the 
vendee  discharges  the  lien.  And,  in  short,  any  agreement, 
or  dealing  with  the  goods,  inconsistent  with  the  retention 
of  the  lien,  will  operate  as  a  waiver.^^ 

§  111.  Stoppage  in  transitu. — Where  the  vendor  has 
parted  with  the  possession  of  goods  sold  before  payment 
of  the  purchase  price,  and  placed  them  in  the  hands  of 
a  carrier,  or  other  middleman,  for  delivery  to  the  buyer,  if 
while  the  goods  are  in  transitu  he  discovers  that  the  vendee 
has  become  insolvent  since  the  sale,  or,  unbeknown  to  him, 
was  insolvent  at  the  time  of  the  sale,  he  may  retake  and 


'^  Tiede.  Sales,  ch.  IX;  Benj.  Sales,  pp.  662-667;  Pierson  v. 
Crooks,  115  N.  Y.  539. 

8  Johnson  v.  Oppenheim,  55  N.  Y.  291 ;  Smith  v.  Pettee,  70  N.  Y. 
13. 

9  Arnold  v.  Delano,  4  Cush.  33,  38. 

"Tiede.  Sales,  §  119;  Benj.  Sales,  p.  750,  ct  scq.;  Am.  n.  p.  773, 
ei  seq.;  1  Sch.  Pers.  Prop.  482,  et  seq.;  2  Id.  p.  579,  et  scq.;  Bouv. 
L.  Diet.  "Lien;"  And.  L.  Diet.  "Lien." 

11  Tiede.  Sales,  §§  120-122;  Benj.  Sales,  p.  751,  et  seq.;  Am.  n. 
p.  774. 


§  111.]  STOPPAGE   OF   TRANSITU.  177 

hold  the  goods  as  security  for  the  price.^^  "This  is  a 
right,"  it  is  well  said,  "which  arises  solely  upon  the  insol- 
vency of  the  buyer,  and  is  based  on  the  plain  reason  of 
justice  and  equity  that  one  man's  goods  shall  not  be  ap- 
plied to  the  payment  of  another  man's  debt."^^ 

While  the  right  of  stoppage  in  transitu,  and  the  vendor's 
lien,  are  nearly  related  in  spirit  and  purpose,  there  is  a 
distinction  between  them  which  is  not  always  observed, 
leading  to  some  confusion  and  apparent  conflict  in  the 
cases.  We  have  seen^*  that  the  vendor  of  personal  prop- 
erty, still  in  his  possession,  has  a  lien  upon  it  as  security 
for  the  price,  but  that  in  a  sale  on  credit  no  lien  attaches 
or,  as  it  is  sometimes  expressed,  the  lien  is  waived  by  im- 
plication. The  right  of  stoppage  in  transitu,  on  the  con- 
trary, is  not  aflfected  by  the  credit,  and  may  be  exercised 
before  payment  falls  due.^^ 

The  theory  or  principle  on  which  the  right  of  stoppage 
in  transitu  depends,  and  the  effect  of  its  exercise,  have 
given  rise  to  considerable  discussion,  and  some  difference 
of  opinion.  On  one  theory,  there  is  a  constructive  posses- 
sion in  the  seller  for  the  purpose  of  a  lien,  which  is  en- 
forced by  the  stoppage;  on  another,  the  vendor  as  a  right 
to  rescind  the  contract  in  case  of  insolvency,  which  right 
may  be  exercised  by  stoppage  in  transitu.  The  lien  theory 
is   favored  by  the  weight  of   American  authority,   which 


i^Benj.  Sales,  p.  778,  et  seq.;  Am.  n.  p.  817,  et  scq.;  Tiede. 
Sales,  §  125,  et  seq.;  2  Sch.  Pers.  Prop.  p.  586,  et  seq.;  2  Kent, 
Com.  p.  540,  et  seq.;  Gibson  v.  Carruthers,  8  M.  &  W.  337. 

13  D'Aquila  v.  Lambert,  2  Eden,  at  p.  77 ;  Amb.  399. 

^*  Supra,  §  110. 

15  Stubbs  V.  Lund,  7  Mass.  453,  456 ;  Clapp  v.  Peck,  55  la.  270 ; 
Clapp  V.  Sohmer,  55  la.  273;  Babcock  v.  Bonnell,  80  N.  Y.  244, 
249;  Bell  v.  Moss,  5  Wheat,  189;  Atkins  v.  Colby,  20  N.  H.  154; 
Newhall  v.  Vargas,  13  Me.  193. 


178  STOPPAGE   OF   TRANSITU.  [§  111. 

seems  to  establish  the  doctrine  that  the  exercise  of  the  right 
of  stoppage  does  not  operate  as  a  rescission  of  the  contract 
of  sale;  and  that  the  vendee  is  afterwards  entitled  to  the 
possession  of  the  goods  on  payment  or  tender  of  the  pur- 
chase price,  even  though  the  goods  may  have  greatly  ap- 
preciated in  value.^^  In  New  York  it  has  been  held  that 
the  vendor,  after  stopping  the  goods  for  insolvency  of  the 
buyer,  may  sell  the  goods  and  give  good  title  to  a  buyer,  so 
that  he  may  maintain  replevin  against  an  officer  attaching 
them  as  goods  of  the  vendee.^^ 

Chief  J.  Shaw,  in  Arnold  v.  Delano,^^  speaking  of  the 
waiver  of  vendor's  lien  by  the  giving  of  credit,  says:  "But 
the  law  in  holding  that  a  vendor,  who  has  thus  given  credit 
for  goods,  waives  his  lien  for  the  price,  does  so  on  one  im- 
plied condition,  which  is,  that  the  vendee  shall  keep  his 
credit  good.  If,  therefore,  before  payment,  the  vendee 
becomes  bankrupt  or  insolvent,  and  the  vendor  still  retains 
the  custody  of  the  goods,  or  any  part  of  them,  or  if  the 
goods  are  in  the  hands  of  a  carrier,  or  middleman,  on  their 
way  to  the  vendee,  and  have  not  yet  got  into  his  actual 
possession,  and  the  vendor,  before  they  do,  can  regain  his 
actual  possession,  by  stoppage  in  transitu,  then  his  lien  is 
restored  and  he  may  hold  the  goods  as  security  for  the 
price." 

The  right  of  stoppage,  being  considered  just  and  equit- 


16  Babcock  v.  Bonnell,  80  N.  Y.  244,  250,  251 ;  Jordan  v.  James,  5 
Ohio,  88;  Rowley  v.  Bigelow,  12  Pick.  312;  Pattens  Appeal,  45  Pa. 
St.  151 ;  Kemp  v.  Falk,  7  App.  Cas.  573,  581 ;  Newhall  v.  Vargas, 
13  Me.  93 ;  Rogers  v.  Thomas,  20  Conn.  53 ;  Rucker  v.  Donovan,  13 
Kan.  251 ;  Stanton  v.  Eager,  10  Pick.  475 ;  Wart  v.  Scott,  6  Grant, 
(Ont.)  154;  Grout  v.  Hill,  4  Gray,  361;  Chandler  v.  Fuller,  10  Tex. 
2;  McElroy  v.  Seerey,  61  Md.  389,  48  Am.  Rep.  110. 

17  Tuthill  V.  Skidmore,  124  N.  Y.  148. 

18  4  Cush.  2Z,  38-41. 


§112.]  PAYMENT  AND  TENDER.  179 

able,  is  extended  to  other  vendors,  to  persons  occupy- 
ing a  similar  position,  quasi  vendors.  For  examples,  a 
factor  or  commission  merchant,  who  buys  for  the  con- 
signee;^^ to  one  who  pays  the  price  for  the  vendee,  and 
takes  the  bill  of  lading  in  his  own  name,  or  has  it  assigned 
to  him  ;^°  and  the  vendor  of  an  interest  in  an  executory 
agreement,  ^^ 

When  does  the  transit  begin,  and  when  does  it  end? 
Answering  generally,  it  begins  when  the  vendor  parts  with 
the  possession  fully,  so  that  his  right  of  lien  is  gone,  and 
ends  when  the  goods  reach  the  actual  possession  of  the  ven- 
dee, or  his  authorized  agent.  The  statement  often  found 
in  the  books  that  the  transit  terminates  when  the  goods 
reach  their  ultimate  destination  is  liable  to  mislead,  and  is 
not  accurate  if  the  expression  "ultimate  destination"  be 
used  in  the  sense  of  locality,  and  not  the  actual  possession 
of  the  vendee.  The  goods  may  have  reached  the  place  of 
consignment,  and  still  be  in  transit  to  the  vendee  while  in 
the  hands  of  a  wharfinger,  warehouseman,  cartman,  or 
other  middleman.  If  at  the  end  of  the  route,  possession 
is  given  to  vendee's  agent  or  warehouseman,  although 
the  goods  are  not  actually  delivered  to  the  vendee,  the  right 
is  lost.^^ 

§  112.  Payment  and  tender. — On  compliance  with  the 
contract  of  sale  by  the  vendor,  he  is  entitled  to  payment 


19  Newhall  v.  Vargas,  13  Me.  93 ;  Seymour  v.  Newton,  105  Mass. 
275;  Ilsley  v.  Stubbs,  9  Mass.  65,  71;  Ex  parte  Miles,  15  Q.  B.  Div. 
39. 

2«MuIler  V.  Poudir,  55  N.  Y.  325,  337;  Gossler  v.  Schepeler,  5 
Daly,  476. 

21  Jenkyns  v.  Osborne,  7  M.  &  G.  678,  698 ;  8  Scott,  N.  R.  505. 

22  Tiede.  Sales,  §§  129-133;  Benj.  Sales,  p.  784,  et  seq.;  Am.  n. 
pp.  820-825;  2  Sch.  Pers.  Prop.  p.  590,  et  seq.;  Harris  v.  Pratt,  17 
N.  Y.  249 ;  Seymour  v,  Newton,  105  Mass.  275 ;  Brooke  Iron  Co. 
V.  O'Brien,  135  Mass.  442, 


180  PAYMENT  AND  TENDER.  [§  112. 

according  to  its  terms,  express  or  implied.  Where  no  stipu- 
lation is  made  by  the  parties  in  regard  to  the  mode,  or  time, 
of  payment,  an  immediate  and  absolute  payment  in  cash 
is  implied  by  law,  and  obligatory  upon  the  vendee.  But 
the  contract  may  provide  for  other  kinds  of  payment,  or  a 
credit  may  be  given  for  a  stipulated  time.  When  payment 
becomes  due,  the  debtor  cannot  safely  wait  for  demand  to 
be  made,  but  must  seek  the  vendor  or  his  authorized  agent, 
and  make,  or  tender  payment.^^ 

Other  than  money  payments : 

1.  Payment  by  note  or  bill. — A  payment  by  bill  or  note 
may  be  absolute  or  conditional.  It  is  generally  held  that 
the  debtor's  own  note  or  bill  given  in  liquidation  of  his 
debt,  is  a  conditional  payment,  and  will  not  effect  an  abso- 
lute discharge  of  the  debt  until  itself  is  paid,  unless  it  be 
taken  by  agreement  of  the  parties  as  an  absolute  payment. 
The  indebtedness  of  the  buyer  in  itself  gives  the  vendor  an 
implied  promise  of  payment,  and  a  promissory  note  only 
supplements  the  implied,  unwritten,  with  an  express,  writ- 
ten, promise.  It  does  not  increase  the  obligation  of  the 
buyer,  or  add  to  the  security  of  the  vendor,  but  the  latter 
is  at  liberty  to  accept  the  written  promise  as  an  absolute 
payment  and  discharge  of  the  debt,  if  he  will.  The  trans- 
fer to  the  vendor  by  the  purchaser  of  a  note  or  bill  of  a 
third  party  is  in  some  cases  an  absolute,  and  in  others  only 
a  conditional,  payment.  If  payable  to  bearer,  and  trans- 
ferred at  the  time  of  the  sale  without  indorsement,  it  is 
prima  facie  an  absolute  payment;  but  if  payable  to  order 
and  transferred  by  indorsement,  it  will  operate  only  as 
conditional  payment  unless  otherwise  agreed  by  the  parties. 
In  some  of  the  states,  the  transfer  of  a  negotiable  bill  or 
note  by  a  debtor  to  his  creditor  for  a  precedent  simple 

23  2  Sch.  Pers.  Prop.  p.  425;  Benj.  Sales,  pp.  669,  670. 


§  112.]  PAYMENT  AND  TENDER.  181 

contract  debt,  is  deemed,  prima  facie,  an  absolute  payment 
or  discharge  of  the  debt,  but  in  a  majority  of  the  states 
such  a  transfer  is  held  to  be  only  a  conditional  payment  in 
the  absence  of  proof  of  a  different  agreement  by  the  par- 
ties.2* 

As  a  rule,  the  acceptance  of  a  bill  or  note  conditionally 
in  payment  of  a  debt,  suspends  the  right  of  action  on  the 
original  debt  until  maturity  of  the  paper.^"  On  maturity 
the  right  of  action  revives,  and  it  is  then  optional  with 
the  creditor  to  bring  his  action  on  the  paper,  or  on  the 
original  debt.^®  Should  he  elect  the  latter  alternative,  he 
must  produce  in  court  and  surrender  the  paper,  or  so  ac- 
count for  its  absence  as  to  show  that  the  debtor  will  be 
free  from  liability  upon  it  to  a  third  party." 

If  the  debtor  becomes  liable  on  the  bill  or  note  as  a 
drawer  or  indorser,  failure  of  the  holder  to  exercise  due 
diligence  in  presenting  the  same  for  payment,  and  giving 
notice  of  dishonor,  will,  it  is  generally  held,  discharge  the 
debtor  both  from  his  liability  on  the  dishonored  paper,  and 
on  the  original  debt,  where  such  negligence  results  in  loss.^^ 


24Tiede.  Sales,  §  144;  Benj.  Sales,  Am.  n.  pp.  699,  700,  where 
the  decisions  in  the  several  states  on  this  point  are  collated. 

25  Stedman  v.  Gooch,  1  Esp.  3 ;  Griffith  v.  Cowen,  13  M.  &  W.  58 ; 
Black  V.  Zacarie,  8  How.  4833 ;  Putnam  v.  Lewis,  8  Johns,  389 ; 
Price  V.  Price,  16  M.  &  W.  231 ;  Armstead  v.  Ward,  2  Pat.  &  H. 
504;  Phcenix  Ins.  Co.  v.  Allen,  11  Mich.  501. 

26  Bank  of  Ohio  Valley  v.  Lockwood,  13  W.  Va.  426 ;  Owenson  v. 
Morse,  7  T.  R.  SO ;  Steadman  v.  Gooch,  1  Esp.  4 ;  Price  v.  Price, 
16  M.  &  W.  231 ;  Tobey  v.  Barber,  5  Johns.  68. 

27  Jones  V.  Savage,  6  Wend.  658 ;  Dayton  v.  Trull,  23  Wend.  345 ; 
Raymond  v.  Merchant,  3  Cow.  147,  150;  Alcock  v.  Hopkins,  6 
Cush.  484 ;  Miller  v.  Lumsden,  16  111.  161 ;  Matthews  v.  Dare,  20 
Md.  248. 

28  Smith  v.  Miller,  43  N.  Y.  171,  52  N.  Y.  546;  Betterton  v. 
Roope,   3   Lee    (Tenn.),  220;    Phoenix   Ins.   Co.    1.   Allen,    11    Mich. 


182  PAYMENT  AND  TENDER.  [§  112. 

2.  Payment  by  check  or  draft. — The  authorities  are  not 
entirely  agreed  upon  the  effect  of  payment  by  check  or 
draft.  Some  hold  that  the  buyer's  negotiable  check  is 
prima  facie  payment,  conditionally,  and  if  the  drawer  has 
no  funds  in  the  drawee's  hands  to  meet  the  check,  or  draws 
them  out  before  the  holder  has  a  reasonable  time  to  present 
the  check,  it  will  not  operate  as  a  payment,  and  the  cred- 
itor may  resort  to  his  original  cause  of  action.^^  But  if,  at 
the  time  of  giving  the  check,  the  drawer  has  sufficient  funds 
in  the  hands  of  the  drawee,  and  the  payee  neglects  for  an 
unreasonable  time  to  present  the  check,  and  the  drawee  in 
the  meantime  fails,  the  loss  falls  upon  the  creditor.  He 
becomes  the  victim  of  his  own  negligence,  and  cannot  main- 
tain an  action  on  the  original  indebtedness.^"  Other  cases 
hold  that  the  creditor  may  recover  on  the  original  cause  of 
action,  unless  the  debtor  shows  that  the  check  has  been  paid, 
or  that  a  loss  has  resulted  from  an  unreasonable  delay  of 
the  creditor  in  presenting  the  check  for  payment.'^ 

3.  Payment  in  counterfeit,  or  worthless  bills. — Counter- 
feit or  forged  bills,  bank  notes,  or  personal  notes,  given  in 
payment,  do  not  constitute  payment,  or  discharge  the  debt. 
The  creditor  in  such  case,  gets  no  value,  no  quid  pro  quo. 
Some  cases  hold  that  the  receiver  of  counterfeit  or  forged 
paper   is   bound   to   use   due   diligence   in   ascertaining   its 

501;  Mehlbery  v.  Fisher,  24  Wis.  607;  Allan  v.  Eldred,  SO  Wis. 
136;  Dayton  v.  Trull,  23  Wend.  345. 

2»Broughton  v.  Silloway,  114  Mass.  71. 

30Cushman  v.  Libbey,  15  Gray,  358;  Taylor  v.  Wilson,  11  Met. 
44;  Hodgson  v.  Barrett,  33  Ohio  St.  63;  Barnard  v.  Graves,  16 
Pick.  41;  Warriner  v.  The  People,  74  111.  346;  Mclntyre  v.  Ken- 
nedy, 29  Pa.  St.  448. 

31  Bradford  v.  Fox,  38  N.  Y.  289;  Smith  v.  Miller,  43  N.  Y.  171; 
Thompson  v.  The  Bank  of  British  N.  A.,  82  N.  Y.  1 ;  Kerneyer  v. 
Newbt,  14  Kan.  164;  Phillips  v.  Bullard,  58  Ga.  256;  DeGampart 
V.  Brown.  28  Ark.  166. 


§  112.]  PAYMENT  AND  TENDER.  183 

character,  and  to  promptly  return  the  same,  or  notify  the 
other  party  of  its  character,  and  that  faiUng  in  this  regard, 
its  receipt  by  him  will  be  deemed  a  valid  payment.  The 
necessity  or  utility  of  returning  an  utterly  worthless  piece 
of  paper,  or  of  notifying  the  other  party  of  its  character, 
is  not  obvious  on  first  thought,  but  in  some  cases,  an  early 
notice  might  enable  an  innocent  party  to  obtain  redress 
from  prior  parties.^- 

4.  Payment  in  specific  articles. — By  agreement  of  the 
parties,  the  price  may  be  payable  in  specific  articles.  It 
is  only  necessary  to  say,  that  when  so  payable,  the  articles 
must  be  delivered  in  accordance  with  the  terms  of  the  con- 
tract, and  in  default  thereof  the  price  becomes  payable  in 
cash.^^ 

5.  Payment  by  mail. — Where  the  creditor  authorizes  or 
requests  payment  by  mail,  or  other  specific  mode,  he  there- 
by appoints  his  own  agency  for  the  transmission  of  the 
funds,  and  assumes  all  the  risk  attendant  upon  such  mode 
of  remittance.  The  obligation  of  the  debtor  will  be  fully 
discharged  by  sending  the  money  as  authorized  or  re- 
quested, even  although  it  may  never  reach  the  creditor.'* 
But  money  sent  by  mail  without  authority  of  the  creditor, 
or  the  sanction  of  any  general  usage  or  custom,  is  at  the 
risk  of  the  debtor,  and  if  not  received  by  the  creditor,  the 
debt  remains  uncanceled."^    It  has  been  held,  however,  that 

32  Benj.  Sales,  Am.  n.  pp.  697,  698,  and  cases  cited;  Tiede.  Sales, 
§  149;  2  Pars.  Cont.  (7  Ed.),  p.  622. 

33  Perry  v.  Smith,  22  Vt.  301 ;  Roberts  v.  Beatty,  2  Pen.  &  Watts, 
63 ;  Church  v.  Feterow,  2  Pen.  &  Watts,  301 ;  Stone  v.  Nichols,  43 
Mich.  16. 

3*  Gurney  v.  Howe,  9  Gray,  404;  Morgan  v.  Richardson,  13  Al- 
len, 410 ;  Palmer  v.  Phoenix  Mut.  Ins.  Co.,  84  N.  Y.  63 ;  Townsend 
V.  Henry,  9  Rich.  L.  318. 

35  Crane  v.  Pratt,  12  Gray,  348;    First  Nat.  Bank  v.  McManigle, 


184  PAYMENT  AND  TENDER.  [§  112. 

depositing  the  money  in  the  postoffice,  in  an  envelope  prop- 
erly addressed  to  the  creditor  at  his  place  of  business,  is 
prima  facie  evidence  that  he  received  it.^^ 

6.  Appropriation  of  payments. — Questions  in  regard  to 
the  appropriation  of  payments  arise  where  several  debts 
are  due  from  one  person  to  another,  and  a  payment  is  made 
vi^hich  is  insufficient  to  satisfy  all.  The  general  rules  gov- 
erning such  cases  may  be  briefly  summarized. 

(a)  The  debtor,  at  the  time  of  payment,  has  the  right  to 
designate  the  claim  to  which  it  shall  apply.  This  done, 
and  the  appropriation  so  made  by  the  creditor,  it  cannot 
afterwards  be  changed  by  the  debtor,  and  will  not  be 
changed  for  him  by  the  law. 

(b)  If  the  debtor  fails  to  make  the  application  where  he 
has  the  opportunity  of  so  doing,  the  creditor  may  apply 
the  payment  to  any  one  of  several  legal  claims  at  his  option. 
He  may  apply  it  to  a  claim  barred  by  the  statute  of  limita- 
tions, but  such  appropriation  will  not  revive  the  balance  of 
the  debt,  if  any ;  to  a  debt  against  the  payer  and  others ;  to 
an  unsecured  debt  in  preference  to  one  secured ;  and  to  a 
debt  not  enforceable  by  reason  of  the  Statute  of  Frauds. 
But  he  is  not  at  liberty  to  apply  it  to  an  illegal  claim ;  nor 
to  a  debt  absolutely  void  for  usury;  nor  to  a  debt  not  yet 
due,  if  there  be  sufficient  indebtedness  due  to  absorb  the 
payment. 

(c)  If  neither  debtor  nor  creditor  make  the  application, 
the  law  will  apply  the  payment  as  justice  and  equity  re- 
quire, and  in  accordance  with  the  probable  intention  of  the 
parties.'^ 


69  Pa.  St.  156;  Buell  v.  Chapin,  99  Mass.  596;  Williams  v.  Car- 
penter, 36  Ala.  9 ;  Holland  v.  Lyns,  56  Ga.  56. 

36  Huntley  v.  Whittier,  105  Mass.  391;  Waydell  v.  Velie,  1 
Bradf.  277. 

"Benj.    Sales,   Am.   note,    pp.    704,    705;    Tiede.    Sales,    §    152;    2 


§  112.]  PAYMENT  AND  TENDER.  185 

7.  Payment  on  Sunday. — A  payment  made  and  received 
on  Sunday,  if  retained  by  the  creditor,  will  discharge  the 
debt.^^  But  such  payment  is  not  as  effectual  for  all  pur- 
poses as  a  payment  on  a  week  day.  For  example,  a  partial 
payment  on  Sunday  will  not  revive  a  debt  barred  by  the 
Statute  of  Limitations.^^ 

8.  Tender. — While  nothing  but  payment,  or  its  equiva- 
lent accepted  by  the  vendor,  will  discharge  the  buyer's  in- 
debtedness for  the  price,  a  valid  tender  will  relieve  him 
from  liability  for  costs,  and  for  subsequently  accruing  in- 
terest.   The  requirements  of  such  a  tender  are : 

First. — It  must  be  made  in  gold  or  silver  coin,  or  United 
States  treasury  notes.  But  if  the  tender  be  made  of  bank 
notes  which  commonly  pass  current  as  money,  and  no  ob- 
jection be  made  by  the  vendor  to  the  money  tendered,  it 
will  be  sufficient. 

Second. — The  full  amount  due  must  be  tendered;  a 
tender  of  a  part,  if  refused  by  the  vendor,  will  not  suffice. 
An  exception  to  this  rule,  however,  occurs  where  the  ven- 
dor alone  knows  the  exact  amount  due,  and  declines  to 
inform  the  buyer,  in  which  case  the  latter  may  tender  a 
reasonable  sum  in  payment,  and  an  inconsiderable  de- 
ficiency will  not  render  it  invalid. 

Third. — As  a  rule,  the  money  must  be  actually  produced 
and  offered  to  the  vendor  or  his  authorized  agent,  in  such  a 
manner  that  the  person  to  whom  the  tender  is  made  may 


Whart.  Cont.  §§  923-934;  2  Pars.  Cont.  (7  Ed.),  p.  630,  et  seq.; 
1  Am.  Lead'g  Cas.  268. 

28  Johnson  v.  Willis,  7  Gray,  164;  Lamore  v.  Frisbie,  42  Mich. 
186. 

3^  Wainnaman  v.  Keinman,  1  Exch.  118;  Clapp  v.  Hale,  112 
Mass.  368 ;  Bumgardner  v.  Taylor,  28  Ala.  687 ;  Dennis  v.  Shar- 
man,  31  Ga.  607.  But  see  Thomas  v.  Hunter,  29  Md.  412;  and 
Ayres  v.  Bane,  39  Iowa,  518,  differing  as  to  admission  of  debt  by 
a  Sunday  payment. 


186  REMEDIES  OF  THE  VENDOR.  [§  113. 

have  an  opportunity  to  examine  and  count  it  for  himself. 
But  its  production  may  be  waived  by  the  person  to  whom 
the  tender  is  made,  or  rendered  impracticable  by  his  refusal 
to  examine  or  accept  it;  and  in  such  case  if  the  buyer,  or 
his  authorized  agent,  has  the  right  amount  of  legal  tender 
present,  and  offers  to  produce  it  for  examination  and  ac- 
ceptance, the  tender  will  be  sufficient  and  legal. 

Fourth. — The  tender  must  be  unconditional.  It  is  a  well 
settled  rule  that  a  tender  with  conditions  imposed,  as  that 
the  debtor  shall  receive  a  release  or  a  receipt  in  full,  or  the 
like,  is  not  good.  But  it  has  been  held  that  where  a  statute 
makes  it  obligatory  upon  the  debtor  to  give  a  release,  it 
may  properly  be  demanded  where  the  tender  is  made,*"  and 
a  note  may  be  demanded  as  the  condition  of  a  tender  of  its 
payment. 

Fifth. — ^^The  tender  must  be  kept  good.  If  it  be  properly 
made,  and  acceptance  be  refused,  the  debtor  must  there- 
after have  the  money  in  readiness  for  the  creditor  on  his 
demand,  otherwise  the  original  tender  would  be  insufficient. 
And  if  suit  be  subsequently  brought  upon  claim  for  which 
the  tender  was  made,  the  money  must  be  brought  into 
court  for  the  use  of  the  plaintiff.*^ 

§  113.  Remedies  of  the  vendor. — A  vendor  of  personal 
property  has  several  remedies  for  securing  the  purchase 
price,  or  for  breach  of  the  contract,  each  adapted  to  cir- 
cumstances. 

1.  Vendor's  lien. — As  we  have  seen  he  may  have  a  lien 


*<>  Saunders  v.  Frost,  5  Pick.  270 ;  Balme  v.  Wambaugh,  16 
Minn.  116. 

"Tiede.  Sales,  §  140;  Benj.  Sales,  Am.  note,  pp.  706-708;  2 
Pars.  Cont.  pp.  637,  et  seq.;  and  647,  et  seq.;  2  Sch.  Pers.  Prop. 
pp.  428-432;  Bouv.  L.  Diet.  "Tender."  And.  L.  Diet.  "Tender;" 
Eddy  V.  Davis,  116  N.  Y.  247;  Beckert  v.  Boon,  61  N.  Y.  317. 


§  113.]  REMEDIES  OF  THE  VENDOR.  187 

for  the  purchase  price  upon  goods  sold,  while  they  remain 
in  his  possession.  It  is  only,  however,  where  the  property 
in  the  goods  has  passed  to  the  vendee  that  his  lien  attaches, 
for,  obviously,  one  cannot  have  a  lien  on  his  own  prop- 
erty.*^ The  lien,  it  should  be  noted,  is  only  good  as  secur- 
ity for  the  unpaid  price,  and  will  not  hold  for  any  other 
claim,  whether  one  growing  out  of  the  same  transaction, 
or  otherwise.*^ 

2.  Re-sale. — The  vendor  may  re-sell  the  goods  in  the  case 
of  non-acceptance  by  the  vendee,  and  hold  the  latter  liable 
for  any  difference  between  the  contract  price  and  the  sum 
realized  on  the  re-sale.  This  right  may  be  exercised  within 
a  reasonable  time  after  the  buyer's  default.  The  vendor 
should  notify  the  buyer  that  he  will  sell  the  goods  for  the 
account  of  the  buyer,  and  hold  the  latter  liable  for  the  dif- 
ference between  the  contract  price  and  the  re-sale  price; 
and,  while  not  absolutely  essential  to  the  right  of  re-sale, 
it  is  prudent  for  the  vendor  to  give  notice  to  the  buyer  of 
the  time  and  place  of  the  intended  sale,  thus  forestalling 
a  charge  of   unfairness  in  the  transaction.**     Where  the 


*^  Supra,  §  110.  And  see  Tiede.  Sales,  119;  Benj.  Sales,  p.  720, 
Am.  n.  p.  773;  2  Sch.  Pers.  Prop.  pp.  556,  et  seq.;  Clark  v.  Dra- 
per, 19  N.  H.  419;  Arnold  v.  Delano,  7  Cush.  2,3;  Bowen  v.  Burk, 
13  Pa.  St.  146;  Carlisle  v.  Kinney,  66  Barb.  363;  Bradley  v.  Mi- 
chael, 1  Ind.  551. 

*3  Crommelin  v.  N.  Y.  &  Harlem  R.  R.  Co.,  4  Keyes,  90 ;  Somes 
V.  British  Empire  Shipping  Co.,  1  E.  B.  &  E.  367;  L.  J.  Q.  B.  220; 
8  H.  L.  C.  338;  30  L.  J.  Q.  B.  221. 

**  Tiede.  Sales,  §  334;  Benj.  Sales,  pp.  737,  et  seq.;  Am.  n.  p.  747; 
Lewis  V.  Greider,  49  Barb.  606;  Dustan  v.  McAndrew,  44  N.  Y.  72; 
Mason  v.  Decker,  72  N.  Y.  595,  599;  Adams  v.  Mirick,  5  Serg.  & 
R.  32;  Saladin  v.  Mitchell,  45  111.  85;  Barnett  v.  Terry,  42  Ga. 
283;  Atwood  v.  Lucas,  53  Me.  508;  Shawhaut  v.  VanWest,  25  Ohio 
St.  490;  Holland  v.  Rea,  48  Mich.  218;  Smith  v.  Pettee,  70  N.  Y, 
13;  Camp  v.  Hamlin,  55  Ga.  259;  Linden  v.  Eldren,  49  Wis.  305; 
Rosenbaum  v.  Weeden,  18  Gratt.  785 ;  Smith  v.  Pettee,  70  N.  Y.  13» 


188  REMEDIES   OF   THE  VENDOR.  [§  113. 

vendor  elects  to  re-sell  on  default  of  acceptance  by  the 
vendee,  and  notifies  the  latter  of  his  intention  of  so  doing, 
the  vendor  becomes  the  agent  of  the  buyer  for  the  purposes 
of  such  sale,  and  is  bound  to  the  exercise  of  good  faith  and 
reasonable  diligence  to  effect  a  sale  at  the  best  price;  and, 
it  has  been  held  that  the  vendor  is  bound  to  obey  the  in- 
structions given  him  by  the  vendee  as  to  the  time  and  man- 
ner of  sale,  where  he  can  do  so  without  sacrificing  his  lien 
under  the  contract.  If  the  vendor  neglects  to  give  notice 
to  the  buyer  of  the  time  and  place  of  the  resale,  and  there 
be  evidence  of  fraud  or  unfairness  in  the  transaction,  the 
courts  may  adopt  some  other  standard  than  the  price  ob- 
tained as  a  test  of  the  market  value  of  the  goods,  in  deter- 
mining the  difference  between  it  and  the  market  price.'*^ 

3.  Stoppage  in  transitu. — Another  remedy  of  the  vendor 
against  the  goods  is  stoppage  in  transitu.  This  remedy  has 
already  been  sufficiently  considered,  for  the  purposes  and 
plan  of  this  treatise.**' 

4.  Reclamation. — We  have  seen  that  where  the  vendee 
purchases  goods  under  false  representations,  or  with  an  in- 
tention not  to  pay  for  them,  he  does  not  acquire  a  good 
title  as  against  the  defrauded  vendor,  who  may  reclaim 
the  goods  from  the  fraudulent  vendee,  or  from  any  one 
other  than  a  bona  fide  purchaser  of  such  vendee.*^ 

5.  Action  for  refusal  to  receive  the  goods. — Where  the 
property  in  the  goods  has  not  passed  to  the  buyer,  and  he 


18;  Consinery  v.  Pearsall,  8  Jones  &  Sp.  114;  Pickering  v.  Bard- 
well,  21  Wis.  562;  Brownlee  v.  Bolton,  44  Mich.  218. 

«  Tiede.  Sales,  §  334 ;  Girard  v.  Taggart,  5  Serg.  &  R.  2>2;  Chap- 
man V.  Ingram,  30  Wis.  290;  Rickey  v.  Tenbroeck,  63  Mo.  587; 
Haskell  v.  McHenry,  4  Cal.  411;  McCombs  v.  McKennan,  2  Watts 
.&  S.  219 ;  Coffman  v.  Hampton,  2  Watts  &  S.  399. 

^"^  Supra,  §  111. 

"  Sxipra.  §  105,  sub.  5. 


§  113.]  REMEDIES  OF  THE  VENDOR.  189 

wrongfully  refuses  to  accept  and  pay  for  them  according 
to  promise,  the  vendor  may  have  an  action  against  the  ven- 
dee, in  which  he  will  be  entitled  to  recover  the  actual  dam- 
ages sustained,  but  not  the  full  purchase  price  of  the  goods. 
The  measure  of  damages  generally  governing  in  this  action, 
is  the  difference  between  the  contract  price  and  the  market 
price  of  such  goods  at  the  time  when  the  contract  was 
broken,  and  the  date  of  breach  is  the  time  when  the  goods 
were  to  have  been  delivered.*^ 

6.  Action  for  the  price. — According  to  the  weight  of 
American  authority,  when  the  vendor  has  complied  with 
the  contract  on  his  part  he  may  regard  the  goods  as  the 
property  of  the  buyer,  notwithstanding  his  refusal  or  neg- 
lect to  accept,  and  recover  of  him  the  full  contract  price.** 
There  are  some  authorities  which  are  not  in  harmony  with 
the  general  trend  of  judicial  opinion  on  this  point.^° 

7.  It  is  hardly  necessary  to  add  that  in  case  the  goods 
are  delivered  to,  and  accepted  by,  the  vendee,  and  he  re- 
fuses or  neglects  to  pay  for  them  when  payment  is  due,  the 
vendor  may  maintain  an  action  against  him  for  the  pur- 
chase price. 


48Benj.  Sales,  pp.  708,  710,  Am.  n.  p.  716.  Tiede.  Sales,  §  33.3; 
Gibbons  v.  United  States,  8  Wall.  269 ;  Clement,  etc.,  Co.  v.  Meser- 
ole,  107  Mass.  362;  Rand  v.  White  Mountains  R.  R.  Co.,  40  N.  H. 
79;  Young  v.  Merton,  27  Md.  114;  Harris  Mfg.  Co.  v.  Marsh,  49 
Iowa,  11;  Hayden  v.  Demets,  S3  N.  Y.  426;  Danforth  v.  Walker, 
37  Vt.  239;   Nixon  v.  Nixon,  21  Ohio  St.  114. 

^^  Supra,  §  109,  sub.  1;  Tiede.  Sales,  §  ZiZ;  3  Pars.  Cont.  (17 
Ed.),  p.  210;  Mason  v.  Decker,  72  N.  Y.  595,  599;  Bement  v.  Smith, 
15  Wend.  493;  Doremus  v.  Howard,  23  N.  J.  L.  390;  Bridgford  v. 
Crocker,  60  N.  Y.  627;  Higgins  v.  Murray,  72,  N.  Y.  252;  Nichols 
V.  Moore,  100  Mass.  277;  Wade  v.  Moffet,  21  III.  110;  Bell  v.  Ofifut, 
10  Bush,  639;  Ballentine  v.  Robinson,  46  Pa.  St.  177. 

50  Pittsburg,  etc.,  R.  R.  Co.  v.  Heck,  50  Ind.  303;  Indianapolis, 
etc.,  R.  R.  Co.  V.  Maguire,  62  Ind.  140;  Fell  v.  Muller,  78  Ind. 
507;  Moody  v.  Browe,  34  Me.  107. 


190  REMEDIES  OF  THE  VENDEE.  [§  114. 

§  114.  Remedies  of  the  vendee. — The  vendee,  as  well 
as  the  vendor  has  several  remedies  for  non-performance 
or  breach  of  the  contract,  each  adapted  to  the  particular 
circumstances  of  the  case. 

1.  Action  for  non-delivery. — In  case  of  failure  by  the 
vendor  to  deliver  the  goods  in  pursuance,  and  according 
to  the  terms,  of  his  contract,  the  buyer  has  an  action 
against  him  for  damages.  When  the  price  has  not  been 
paid,  the  measure  of  damages  will  be  the  difference  between 
the  contract  price  and  the  market  value  at  the  time  and 
place  of  delivery.^^  The  authorities  do  not  agree  as  to 
the  measure  of  damages  where  the  contract  price  has  been 
paid.  One  class  hold  that  the  buyer  is  only  entitled  to 
receive  the  market  price  at  the  time  and  place  of  delivery.'*'^ 
Other  authorities  hold  that  the  measure  of  damages  is  the 
highest  market  price  of  the  goods  between  the  time  of  de- 
livery and  the  commencement  of  the  action. ^^ 


"Tiede.  Sales,  §  335;  Benj.  Sales,  p.  829,  et  seq..  Am.  n.  p.  859; 
Dana  v.  Fielder,  12  N.  Y.  40;  Parsons  v.  Sutton,  66  N.  Y.  92; 
Sleuter  v.  Wallbaum,  45  111.  44;  Grand  Tower  Co.  v.  Phillips,  23 
Wall.  471;  Bush  v.  Holmes,  53  Me.  417;  Somers  v.  Wright.  115 
Mass.  292;  Miles  v.  Miller,  12  Bush,  134;  Chadwick  v.  Butler,  28 
Mich.  349;  Guice  v.  Grenshaw,  60  Tex.  344;  Gray  v.  Hall,  29  Kan 
704;  Kribs  v.  Jones,  44  Md.  396;  Gordon  v.  Norris,  49  N.  H.  376 
Rose  V.  Bozeman,  41  Ala.  678;  Worthen  v.  Wilmot,  30  Vt.  555: 
West  V.  Pritchard,  19  Conn.  215;  Behner  v.  Dale,  25  Ind.  433; 
Cannon  v.  Folsom,  2  Iowa,  101 ;  White  v.  Tompkins,  52  Pa.  St 
363;  Hill  v.  Chapman,  59  Wis.  211;  Porter  v.  Barrow,  3  La.  An 
140;  Crosby  v.  Watkins,  12  Cal.  85.     And  see  supra,  §  103. 

52Cofield  V.  Clark,  2  Cal.  102;  Shepherd  v.  Hampton,  3  Wheat 
200;  Bear  v.  Harnish,  3  Brewst,  116;  Balto.,  etc.,  Co.  v.  Sewell 
36  Md.  238;  White  v.  Salisbury,  ZZ  Mo.  150;  Hill  v.  Smith,  32  Vt 
433 ;  Rose  v.  Bozeman,  41  Ala.  678 ;  McKenney  v.  Haines,  63  Me 
74;  Smith  v.  Dunlap,  12  111.  184;  Smithhurst  v.  Woolston,  5  Watts 
&  S.  106;  Humphrey svi lie,  etc.,  Co.  v.  Vermont,  etc.,  Co.,  ZZ  Vt 
92;  Douglas  v.  McAllister,  3  Cranch,  298. 

"  Clark  V.  Pinney,  7  Cow.  687 ;  Arnold  v.  Suffolk  Bank,  27  Barb 


§  114.]  REMEDIES   OF  THE  VENDEE.  191 

2.  Special  damages. — In  some  cases  the  buyer  is  entitled 
to  special  damages  beyond  the  difference  between  the 
market  value  and  the  contract  price.  While  the  alleged 
loss  of  mere  speculative  profits  constitutes  no  ground  for 
the  recovery  of  damages,  profits  which  would  naturally 
result  from  the  possession  of  the  goods  bought,  and  the 
reasonable  expectation  of  which  may  have  been  an  induce- 
ment to  the  purchase,  may  be  recovered  as  special  or  con- 
sequential damages;  and  this  especially  where  the  vendor 
knows  the  use  for  which  the  goods  were  bought.^* 

3.  Specific  performance. — Cases  of  non-delivery  some- 
times occur  in  which  an  action  at  law  will  not  afford  the 
buyer  an  adequate  remedy.  In  such  cases  the  court  of 
equity  grants  relief  by  compelling  specific  performance  of 
the  contract  by  a  delivery  of  the  goods  in  accordance  with 
its  terms.  For  the  rules  governing  an  action  for  specific 
performance,  the  student  and  practitioner  will  consult  works 
on  equity  jurisprudence.^^ 

424;  West  v.  Wentworth,  3  Cow.  82;  Dabovich  v.  Emeric,  12  Cal. 
171 ;  Cannon  v.  Folsom,  2  Iowa,  101 ;  West  v.  Pritchard,  19  Conn. 
212;  Meyer  v.  Wheeler,  65  Iowa,  390;  Kent  v.  Ginten,  23  Ind.  1; 
Randon  v.  Barton,  4  Tex.  289;  Oilman  v.  Andrews,  66  Iowa,  116; 
Maher  v.  Riley,  17  Cal.  415. 

5*Tiede.  Sales,  §  336;  Benj.  Sales,  p.  829,  et  seq.,  Am.  n.  p.  859, 
ct  seq.;  Royalton  v.  Royalton,  etc.,  Co.,  14  Vt.  311 ;  Masterton  v. 
Mayor  of  Brooklyn,  7  Hill,  62;  Cook  v.  Com'rs  of  Hamilton  Co., 
6  McLean,  612;  Burrell  v.  N.  Y.,  etc.,  Co.,  14  Mich.  34;  Hubbard  v. 
Rowell,  51  Conn.  423;  United  States  v.  Behan,  110  U.  S.  338;  Nat. 
Filtering  Oil  Co.  v.  Citizens  InS.  Co.,  106  N.  Y.  535;  Morrison  v. 
Lxjvejoy,  6  Minn,  224;  Passenger  v.  Thorburn,  34  N.  Y.  634;  White 
V.  Miller,  7  Hun.  427,  71  N.  Y.  118,  78  N.  Y.  393;  Flick  v.  Weather- 
bee,  20  Wis.  392;  Bell  v.  Reynolds,  78  Ala.  511;  Shepard  v.  Mil- 
waukee Gas  Light  Co.,  15  Wis.  318;  Bartlett  v.  Blanchard,  13 
Gray,  429;  Adams  Exp.  Co.  v.  Egbert,  36  Pa.  St.  360;  Fessleer  v. 
Love,  48  Pa.  St.  407;  Richmond  v.  Dubuque,  etc.,  R.  R.  Co.,  40 
Iowa,  264,  43  Iowa,  422. 

s^Tiede.    Sales,  §  337;  Benj.  Sales,  p.  848,  Am.  n.  p.  862. 


192  REMEDIES  OF  THE  VENDEE.  [§  114. 

4.  Remedies  for  breach  of  warranty. — Receipt  of  the 
goods  by  the  vendee  under  an  executory  contract  of  sale, 
does  not  bar  his  remedies  for  a  breach  of  warranty.  There 
may  be  a  breach  of  warranty  of  title;  of  the  quahty  of 
the  goods ;  in  not  dehvering  goods  of  the  same  kind  or 
quahty  as  those  bought ;  in  dehvering  goods  that  do  not 
correspond  with  the  sample,  where  the  sale  is  by  sample. 
In  these  cases  the  buyer  has  the  choice  of  three  remedies : 
First,  he  may,  except  in  the  case  of  a  specific  chattel  in 
which  the  property  has  passed  to  him,  refuse  to  accept  the 
goods,  and  return  them,  or  give  notice  to  the  vendor  that 
he  rejects  them,  and  that  they  remain  at  the  seller's  risk; 
second,  he  may  accept  the  goods  and  have  his  action  for  a 
breach  of  the  warranty;  or,  third,  if  he  has  not  paid  the 
price,  and  is  sued  therefor  by  the  vendor,  he  may  set  up 
the  breach  of  warranty  as  a  defense  in  recoupment,  or  as  a 
counterclaim.^^ 

In  some  of  the  States  the  courts  hold,  that  in  the  absence 
of  fraud,  or  knowledge  of  the  defect  by  the  vendor,  or  of 
an  agreement  to  return,  the  mere  breach  of  warranty  does 
not  confer  that  right. ^^  There  is  a  lack  of  unanimity  in 
the  authorities  on  this  point. 


^  Benj  Sales,  p.  851,  ct  seq..  Am.  n.  p.  863,  et  seq.;  Tiede.  Sales 
§  197;  Hoadley  v.  House,  32  Vt.  179;  Butler  v.  Northumberland, 
50  N.  H.  Z?i ;  Magee  v.  Billingsley,  3  Ala.  679 ;  Voorhes  v.  Earl, 
2  Hill,  288;  Gates  v.  Bliss,  43  Vt.  299;  Freyman  v.  Knecht,  78  Pa. 
St.  141;  Douglass  Axe  Co.  v.  Gardner,  10  Cush.  88;  Perrin  v.  Ter- 
rell, 30  N.  J.  L.  454;  Mandell  v.  Buttles,  21  Minn.  391;  Northwood 
V.  Rennic,  3  Ont,  Ap.  Z7  (1878)  ;  Kimball  v.  Vorman,  35  Mich. 
310;  Muller  v.  Eno,  14  N.  Y.  597;  Day  v.  Pool,  52  N.  Y.  416;  Vin- 
cent   V.    Leland,    100   Mass.    432. 

57  Lightburn  v.  Cooper,  1  Dana,  273 ;  Voorhees  v.  Earl,  2  Hill, 
288;  Muller  v.  Eno,  14  N.  Y.  597;  Kasee  v.  John,  10  Watts,  107; 
Walls  V.  Gates,  6  Mo.  Ap.  242.  See  supra,  §§  105,  107,  108,  in  re- 
gard to  fraud,  conditions  and  warranty. 


§  114.]  REMEDIES   OF   THE  VENDEE.  193 

5,  Mistake  and  failure  of  consideration. — If,  by  reason 
of  a  mistake  in  regard  to  a  material  fact,  the  minds  of  the 
parties  fail  to  meet  upon  the  subject  matter,  or  terms  in  an 
executory  contract  of  sale,  the  vendee  is  excused  from  its 
performance.  If  the  mistake  be  not  discovered  until  after 
the  execution  of  the  contract,  the  vendee  may  then  rescind 
by  placing  the  other  party  in  statu  quo,  and  recover  back 
what  he  has  paid.  And  the  same  rule,  substantially,  ap- 
plies in  case  of  a  failure  of  consideration.^* 

6.  Illegal  contracts  of  sale. — Before  passing  from  the 
subject  of  remedies,  it  should  be  stated  that,  according  to 
the  weight  of  American  authority,  the  courts  will  not 
grant  relief  to  either  party  to  an  illegal  contract  of  sale, 
whether  executory  or  executed,  upon  the  ground  of  public 
policy.  The  vendor  can  retain  the  price  if  paid,  but  if 
unpaid  he  cannot  maintain  an  action  for  the  value  of  the 
goods.  This  just  and  wholesome  rule  is  in  accordance 
with  the  common  law  maxim:  Ex  turpi  causa  non  oritur 
actio,  which  applies  as  well  to  a  statement  of  defense  as  to 
a  statement  of  claim.  Says  Lord  Mansfield,  in  Montefiori 
V.  Montefiori,^^  "no  man  shall  set  up  his  own  iniquity  as  a 
defense  any  more  than  as  a  cause  of  action."^"  But  Eng- 
lish cases  hold,  that  under  an  unlawful  agreement  remain- 
ing executory,  the  party  paying  the  price  or  delivering  the 
goods,  may  repudiate  the  transaction,  and  recover  back 
his  money  or  goods.  The  action,  it  is  said,  "is  there 
founded,  not  upon  the  unlawful  agreement,  but  upon  its 


^^Benj.  Sales,  p.  346,  et  seq.,  Am.  n.  p.  356;  Tiede.  Sales.  §  35; 
Bish.  Cont.  (2nd  Enl.  Ed.),  §  §  693-714,  632;  2  Kent,  Com.  p.  491. 
See  supra,  §  104. 

s»Bl.  363. 

«o  Tiede.  Sales,  §  293;  Benj.  Sales,  p.  462,  ct  seq.,  Am.  n.  p.  497, 
el  seq.     And  see  supra,  §  106. 
13 


194  '        INDORSEMENT.  [§  115. 

disaffirmance."'^     To  the  same  effect  is  a  decision  of  the 
Supreme  Court  of  the  United  States.®^ 

V.  Indorsement. 

§  115.  There  are  several  kinds  of  instruments,  choses 
in  action,  which,  contrary  to  our  inherited  common  law, 
are  now  held  in  this  country  to  be  negotiable,  the  title  to, 
and  property  in  which  will  pass  from  vendor  to  vendee  by 
indorsement  and  delivery,  or  delivery  alone,  according  to 
the  tenor  of  the  instrument.  The  principal  instruments 
of  this  class  are  Bills  of  Exchange,  Promissory  Notes, 
Coupon  Bonds,  Checks,  Certificates  of  Deposit,  Bank  Notes, 
Certificates  of  stock,  Drafts,  Bills  of  Credit,  Circular  Notes, 
Bills  of  Lading,  Guarantees,  and  Letters  of  Credit.®' 

Bills  of  lading  and  certificates  of  stock,  however,  are  only 
quasi  negotiable,  but  are  generally  classed  with  negotiable 
instruments. 

Mr.  Daniel,  in  his  excellent  treatise  on  Negotiable  In- 
struments, gives  this  definition  of  such  an  instrument: 
"An  instrument  is  called  negotiable  when  the  legal  title 
to  the  instrimient  itself,  and  to  the  whole  amount  of  money 
expressed  upon  its  face,  may  be  transferred  from  one  to 
another  by  indorsement  and  delivery  by  the  holder,  or  by 
delivery  only."**  When  made  payable  to  order,  title 
passes  by  indorsement  and  delivery;  and  by  delivery  with- 


«i  Taylor  v.  Bowers,  1  Q.  B.  D.  291,  C.  A. ;  Symons  v.  Hughes,  2 
Eq.  475,  479. 

«2  Spring  Co.  v.  Knowlton,   13  Otto,  49. 

«3  1  Dan.  Neg.  Inst.  pp.  1-3,  5-7,  28-31,  351,  et  seq.,  660,  et  seq.; 
2  Dan.  Neg,  Inst.  pp.  442,  et  seq.,  456,  458,  529,  532,  638,  641,  646, 
647,  650,  651,  612,  et  seq. 

•*  1  Dan.  Neg  Inst.  p.  1. 


§116.]  ASSIGNMENT.  19S 

out  indorsement  when  payable  to  bearer  in  terms,  or  legal 
effect."^ 

In  order  to  constitute  a  sale  and  transfer  of  a  negotiable 
instrument,  it  must  have  a  pre-existing  vitality;  otherwise 
there  is  nothing  to  sell  or  transfer.**® 

Negotiable  instruments  are  referred  to  in  this  connection 
merely  as  illustrations  of  the  acquisition  of  personal  prop- 
erty by  indorsement.  It  is  not  within  the  scope  of  this  work 
to  treat  of  such  instruments,  or  the  contract  and  effect  of 
indorsement,  in  other  relations  and  branches  of  the  law. 

VI.  Assignment. 

§  116.  The  term  "assignment"  is  very  comprehensive,, 
including  every  kind  of  transfer.  By  use  the  term  is  ap- 
propriated to  special  transfers,  such  as  an  assignment  for 
the  benefit  of  creditors ;  transfer  of  commercial  paper  not 
negotiable,  and  of  such  as  is  negotiable  without  indorse- 
ment ;  transfer  of  bonds ;  and  transfers  by  a  written  in- 
strument. But  the  term  is  not  confined  to  written  trans- 
fers.®^ 

At  common  law  choses  in  possession  might  be  assigned 
by  delivery  of  possession  with  intent  to  transfer  the  title. 
But  choses  in  action  could  not  be  assigned.     Equity,  how- 


65  Edw.  Bills,  p.  263 ;  1  Dan.  Neg.  Inst.  p.  92. 

6«Edw.  Bills,  p.  352;  1  Dan.  Neg.  Inst.  pp.  603,  604;  Powell  v. 
Waters,  8  Cow.  669 ;  Williams  v.  Storm,  2  Duer,  52 ;  Eastman  v. 
Shaw,  65   N.  Y.  522. 

«7  Tiede.  Sales,  §  13 ;  1  Dan.  Neg.  Inst.  p.  585 ;  1  Bouv.  L.  Diet. 
"Assignment;"  Edw.  Bills,  p.  245;  2  Sch.  Pers.  Prop.  p.  673,  et 
seq.;  Williams,  Pers.  Prop.  pp.  34-36,  117,  118;  Bish  Cont.  (2nd 
Enl.  Ed.),  §  §  1177-1189;  Ball  v.  Chadwick,  46  111.  31;  Cowles  v. 
Ricketts,  1  Iowa,  582;  Chase  v.  Walters,  28  Iowa,  460;  Hight  v. 
Sackett,  34  N.  Y.  447,  451;  Perrins  v.  Little,  1  Green,  248;  Potter 
V.  Holland,  4  Blatchf,  210. 


196  BAILMENT.  [§  117. 

ever,  has  established  the  rule  that  all  personal  property, 
if  not  negotiable,  may  be  assigned  by  the  owner.^* 

No  particular  form  need  be  observed  to  effect  the  trans- 
fer, so  long  as  the  intent  is  present.®^  In  order  to  perfect 
a  title,  the  weight  of  authority  is  that  it  is  indispensable 
that  the  assignee  should  immediately  give  notice  of  the  as- 
signment, otherwise  a  priority  may  be  obtained  by  a  subse- 
quent assignee.^"  This  rule  however  is  contrary  to  the  New 
York  decisions.  It  is  there  held  that  as  between  different 
assignees  of  a  chose  in  action  by  express  assignment  from 
the  same  person,  the  one  prior  in  point  of  time  will  be  pro- 
tected, although  he  has  given  no  notice  of  such  assignment 
to  either  the  subsequent  assignee  or  the  debtor. ^^ 

An  assignment  may  be  impeached  for  fraud  upon  as- 
signors or  creditors.  Unless  the  title  is  thus  disputed,  as 
between  debtor  and  assignee,  it  is  immaterial  what  consid- 
eration was  paid.^^ 

The  assignor  cannot  impair  or  defeat  the  assignee's  right, 
either  at  law  or  in  equity.'^ 

After  notice  of  the  assignment  equities  between  the  as- 
signor and  debtor  are  unavailable.'^* 

VII.  Bailment. 

§  117.  Bailment, — from  the  French  word  bailler  signi- 
fying to  deliver, — is  sometimes  classed  as  a  mode  of  acquir- 
es Story,  Eq.  Jur.  §§   1040-1057. 

69  Grain  v.   Paine,  4  Cush,  483;   Tallman  v.   Hoey,  89  N.  Y.  537. 

70  Schuller  v.  Laclede  Bank,  120  U.  S.  511;  Story,  Eq.  Jur. 
§  1035 ;  Eaton  on  Equity,  p.  503. 

''I  Fortunato  v.  Patten,  147  N.  Y.  277;  Fairbanks  v.  Sargent, 
104  N.  Y.    108. 

72Belden  v.  Meeker,  47  N.  Y.  307. 

"  Chapman  v.  Haley,  43  N.  H.  300. 

^*  Bartlett  v.  Pearson,  29  Me.  9 ;  Cummings  v.  Fellam,  13  Vt. 
434. 


§117.]  BAILMENT.  197 

ing  title  to  personal  property,  in  the  third  division  now 
under  treatment.  Between  this  and  the  other  modes  of 
acquiring  title  already  considered,  there  is  the  important 
distinction  that  in  a  bailment  the  special  property  only, 
at  the  most,  passes  to  the  bailee,  the  general  or  absolute 
property  remaining  in  the  bailor,  while  in  the  other  modes 
of  transfer  the  full  title  and  absolute  property,  as  a  rule, 
pass  to  the  transferee. ^^  Generally,  however,  the  bailee 
has  a  right  to  the  possession  for  the  purposes  of  the  bail- 
ment, and  may  protect  it,  and  the  thing  bailed,  against 
everybody  except  the  true  owner.^*^  And  in  some  cases 
the  bailee  may  have  an  action  against  the  true  owner  for  a 
violation  of  the  contract,  or  an  infringement  of  the  right 
of  the  former  based  upon  his  special  property  in  the  thing 
bailed.^' 

The  subject  of  bailment  covers  an  important  and  separ- 
ate branch  of  the  law,  and  its  discussion  is  not  in  place 
here,  except  in  so  far  as  it  constitutes  a  mode  of  acquiring 
a  special  property  or  possessory  interest  in  personal  prop- 
erty. 

TsTiede.  Sales,  §  3;  Story,  Bailm.  §  §  93-96;  Benj.  Sales,  Am.  n. 
p.  4;  2  Sch.  Pers.  Prop.  p.  695,  et  seq. 

76  2  Black.  Com.  p.  452;  Story,  Bailm.  §  93;  Bouv.  L.  Diet.  "Bail- 
ment," sub.  5;  Hurd  v.  West,  7  Cow.  752;  White  v.  Bascom,  28  Vt. 
268;  Chesley  v.  St.  Clair,  1  N.  H.  189;  Bliss  v.  Schaub,  48  Barb. 
339. 

"2  Pars.  Cont.  pp.  126.  127;  Hickok  v.  Buck,  22  Vt.  149;  Benja- 
min V.  Stremple,  13  111.  466. 


198  LIMITATIONS.  [§118. 


CHAPTER  X. 


LIMITATIONS. 


§     118.     History  and  purpose. 

119.  When  the  period   of   limitation  begins   to  run. 

120.  New  promise. 

§  118.  History  and  purpose. — At  common  law,  the 
period  of  limitation  for  the  commencement  of  actions  upon 
personal  claims  was  twenty  years,  and  this  is  still  the  law 
where  the  time  has  not  been  changed  by  statute.^  This 
limitation,  it  is  thought,  was  based  upon  the  presumption 
of  payment  after  the  lapse  of  so  many  years,  a  presumption 
favored  by  the  natural  desire  of  honest  debtors  to  pay,  and 
the  general  inclination  of  creditors  to  enforce  payment 
within  a  reasonable  time.'  The  common  law  limitation 
was  changed  by  act  of  Parliament,  21  James  I,  c.  16,  which 
prescribed  the  period  of  six  years  for  the  commencement 
of  certain  actions  therein  named.  The  provisions  of  this 
statute,  and  of  the  act  of  9  George  IV,  c.  14,  subsequently 
passed,  have  been  quite  generally  adopted  in  this  country, 
and  now  prevails  in  substance  in  most  of  our  States,  there 
being,  however,  other  statutory  provisions  for  special  de- 
mands or  debts. 

The  history  of  adjudications  under  these  statutes  in 
England  develops  much  apparent  conflict  of  opinion  which 
is  largely  due,  it  is  believed,  to  different  views  in  regard  to 
the  true  theory  or  ground  of  limitation.     One  line  of  de- 


^3    Pars.    Cent.    (7   Ed.),   p.  61,   et   seq.;   Bish.   Cent.    (2nd   Enl. 
Ed.),  §  1351. 
2    See  3  Pars.  Cont.  (7  Ed.),  at  p.  61. 


§  118.]  HISTORY  AND  PURPOSE.  199 

cisions  is  based  upon  the  theory  of  presumption  of  pay- 
ment, as  was  the  common  law  limitation;  the  other  upon 
the  ground  of  impolicy  in  suffering  claims  to  lie  unsettled 
for  a  long  period  of  time,  and  the  danger  of  injustice  in 
the  enforcement  of  stale  demands.  The  question  of  differ- 
ence was,  and  is,  in  brief,  whether  statutes  of  limitation  are 
statutes  of  presumption,  or  of  repose.  The  two  views  lead 
to  quite  different  results,  and  account  for  the  conflict  of 
authority.  If  the  lapse  of  time  simply  raises  a  presump- 
tion of  payment,  it  is  neutralized  by  whatever  will  rebut 
the  presumption;  and  anything  will  have  this  effect  which 
implies,  or  amounts  to  an  acknowledgment,  that  the  debt 
has  not  been  paid  or  satisfied.  As  to  what  acknowledg- 
ment, under  this  theory,  is  sufficient  to  take  a  case  out  of 
the  Statute  of  Limitations,  Lord  Mansfield,  in  Truman  v. 
Pent  on, ^  says :  "The  slightest  acknowledgment  has  been 
held  sufficient,  as  saying,  'prove  your  debt,  and  I  will  pay 
you;'  'I  am  ready  to  account,  but  nothing  is  due  you.' 
And  much  slighter  acknowledgments  than  these  will  take 
a  case  out  of  the  statute."  But  if  the  Statute  of  Limita- 
tions be  a  statute  of  repose,  it  remains  a  bar  to  the  enforce- 
ment of  a  claim  within  its  provisions,  unless  the  debtor 
voluntarily  renounces  its  benefit,  and  makes  a  new  promise 
to  pay  the  old  debt. 

The  course  of  adjudications  by  the  English  courts  under 
these  statutes,  is  somewhat  remarkable.  The  early  decis- 
ions adopted  the  theory  of  repose,  but  soon  the  theory  of 
presumption  obtained,  and  continued  through  a  long  line 
of  adjudications.  This  view,  however,  gradually  yielded 
to  the  first,  which  is  now  the  prevailing  doctrine  both  in 
England  and  the  United  States.* 

3  Cowper,  548. 
.  "3    Pars.    Cont.    (7    Ed.),   p.   63;     Bish.    Cont.     (2nd    Enl.    Ed.), 


200  WHEN  UMITATION  BEGINS.  [§  119. 

§  119.  When  the  period  of  limitation  begins  to  run. — 

This  may  be  governed  by  the  wording  of  the  particular 
statute  in  question  in  a  given  case,  but  as  a  general  rule 
the  limitation  begins  to  run  when  the  right  of  action 
accrues.  It  is  then  only  that  the  reason  of  the  limitation 
applies,  whether  the  theory  of  presumption,  or  of  repose, 
be  adopted  as  the  basis  of  the  statute.^ 

The  period  of  limitation  once  begun,  continues  to  run, 
as  a  general  rule,  notwithstanding  the  subsequent  occur- 
rence of  some  disability  which  did  not  exist  at  the  com- 
mencement of  the  action,  and  which,  had  it  then  existed, 
would  have  postponed  the  running  of  the  statute  imtil 
removal  of  the  disability.^ 

To  the  general  rule  governing  the  time  when  the  statute 
begins  to  run,  there  are  certain  exceptions.  By  the 
statute  of  James,  above  referred  to,  it  is  provided  in  sub- 
stance, that  if  the  plaintiff,  at  the  time  the  action  accrues, 
be  an  infant,  feme  covert,  non  compos  mentis,  imprisoned, 
or  beyond  the  seas,  he  may  bring  his  action  at  any  time 
within  the  prescribed  period  of  limitation  after  the  dis- 
ability ceases.  Substantially  like  provisions  exist  in  the 
statutes  of  the  several  States  of  our  Union,  with  some 
variety  of  details.     And  it  is  held,  that  if  several  disabiH- 


1351 ;  2  Sch.  Pers.  Prop.  p.  687.     For  English  statutes  on  this  sub- 
ject,  see  Goodeve,   Mod.   L.   Pers.   Prop.  p.  271,   et  seq. 

53  Pars.  Cont.  (7  Ed.),  pp.  90-94;  Bish.  Cont.  (2nd  Enl.  Ed.), 
§§  1354-1355;  2  Sch.  Pers.  Prop.  p.  680;  Jones  v.  Jones,  91  Ind. 
378;  McMichael  v.  Carlyle,  53  Wis.  504;  Wittersheim  v.  Lady 
Carlisle,  1  M.  &  W.  533;  Fryer  v.  Roe,  12  C.  B.  437;  22  Eng.  L.  & 
Eq.  440;  Bell  v.  Lamprey,  57  N.  H.   168. 

63  Pars.  Cont.  (7  Ed.),  p.  95;  Harris  v.  McGovern,  99  U.  S.  161 
People  V.  Gordon,  82  111.  435;  Hunton  v.  Nichols,  55  Tex.  217 
Kistler  v.  Hereth,  75  Ind.  177;  Howell  v.  Young,  5  B.  &  C.  259 
Crawford  v.  Gaulden,  ZZ  Ga.  173;  Waters  v.  Thanet,  2  Q.  B.  757 
Leonard  v.  Pitney,  5  Wend.  30. 


§  120.]  NEW    PROMISE.  201 

ties  co-exist  when  the  right  of  action  accrues,  the  statute 
does  not  begin  to  run  until  all  are  removed.  But  if  only 
one  exists  when  the  cause  of  action  accrues,  other  dis- 
abilities arising  afterwards  cannot  be  tacked  to  the  first, 
so  as  to  extend  the  time  of  limitation.^ 

Absence  of  the  defendant  from  the  jurisdiction  of  the 
State,  will  also  create  a  disability,  and  postpone  the  run- 
ning of  the  statute  against  the  plaintiff  until  such  disabil- 
ity ceases.* 

The  expression  in  the  English  statute  "beyond  the 
seas,"  or  similar  substituted  phrases,  are  used  in  some  of 
the  American  statutes,  and  the  courts  have  not  fully 
agreed  in  their  construction.  Some  construe  such  phrases 
to  mean  beyond  the  limits  of  the  United  States,  while 
others  hold,  that  beyond  the  State  or  jurisdiction  where 
the  action  is  tried,  will  satisfy  the  statutes.^ 

§  120.  New  promise. — A  new  promise,  either  in  fact  or 
by  operation  of  law,  will  take  a  case  out  of  the  statute, 
revive  a  claim  already  barred,  and  extend  the  time  of  limi- 
tation when  made  before  its  expiration.  In  either  case  a 
new,  or  extended,  limitation  begins  to  run  from  the  making 
of  the  new  promise,  of  the  same  duration  as  that  of  the 
original  period.  Otherwise  stated,  the  new  promise, 
whether  made  by  the  debtor  in  fact,  or  for  him  by  opera- 
tion of  law,  as  by  part  payment,  establishes  a  new  initial 
point  for  the  period  of  limitation.^** 


73  Pars.  Cont.  (7  Ed.),  p.  94,  ct  scq.;  2  Sch.  Pers.  Prop.  pp.  689, 
690 ;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  129 ;  Jackson  v.  Johnson, 
5  Cow.  74;  Butler  v.  Howe,  13  Me.  397;  Jackson  v.  Wheat,  18 
Johns.  40 ;  Eager  v.  Commonweaelth,  4  Mass.  182 ;  Dease  v.  Jones, 
.23  Miss.   133;   Scott  v.   Haddock,   11   Ga.  258. 

83  Pars.  Cont.   (7  Ed.),  p.  96,  et  scq.;  2  Sch.  Pers.  Prop.  p.  690. 

33   Pars.  Cont.    (7  Ed.),  p.  99. 

lOBish.  Cont.  (2nd  Enl.  Ed.),  §  §  1359-1365;  2  Sch.  Pers.  Prop, 
pp.  691-694;  3  Pars.  Cont.  (7  Ed.),  p.  80,  et  seq. 


202  NEW    PROMISE.  [§    120. 

By  the  English  statute,  and  the  statutes  in  most  of  our 
States,  a  new  promise  effectual  to  take  a  case  out  of  the 
statute  must  be  in  writing. 

There  is  not  entire  conformity  in  the  authorities  upon 
the  question, — What  will  constitute  a  new  promise?  The 
difference  of  opinion  may  be  due  in  part  to  differences  in 
the  statutory  provisions  on  the  subject.  Eliminating  from 
the  discussion  the  conflict,  or  apparent  conflict  in  adjudica- 
tions resulting  from  diversity  of  statutes,  there  are  certain 
rules  which  may  be  considered  as  established  by  the  weight 
of  authority. 

1.  There  must  be  either  an  express  promise,  or  an  ac- 
knowledgment of  an  existing  indebtedness  so  expressed, 
and  under  such  circumstances  as  to  give  it  the  meaning, 
and  therefore  the  force  and  effect  of  a  new  promise.  The 
rule  laid  down  by  Stor>%  J.  in  Bell  v.  Morrison,^^  that  an 
acknowledgment  sufficient  to  remove  the  bar  of  the  statute, 
must  be  an  unequivocal  and  positive  recognition  of  an 
existing  debt,  which  the  party  is  liable  and  wiUing  to  pay. 
And  to  the  same  effect  are  many  other  American  authori- 
ties.^^ 

2.  It  is  not  necessary  that  the  acknowledgment  should 
be  of  any  particular  amount.  If  there  be  an  admission  of 
a  legal  debt,  and  of  a  liability  to  pay  it,  evidence  is  admis- 
sible to  show  the  amount.^* 


11  Tanner  v.  Smart,  6  B.  &  C.  603 ;  Morrell  v.  Firth,  3  M.  &  W. 
405;  Hart  v.  Rendergast,   14  M.  &  W.  746. 

12  1    Peters,  362. 

i3Purdy  V.  Austin,  3  Wend.  187;  Allen  v.  Webster,  15  Wend. 
284 ;  Stafford  v.  Bryan,  2  Paige,  45 ;  Loomis  v.  Decker,  1  Daly, 
186;  Chambers  v.  Garland,  3  Green,  Ga.  (la.),  322;  Stockett  v. 
Sasscer,  8  Md.  374;  Pritchard  v.  Howell,  1  Wis.  131;  Moore  v. 
Bank  of  Columbia,  6  Pet.  86;  Guier  v.  Pearce,  2  Browne  (Pa.), 
35;   Young   v.    Monopey,   2   Bailey    (S.    C),    278. 

1*  Dickinson    v.    Hatfield,    1    Moody   &    Rob.    141 ;    Hazlebaker   v.. 


§  120.]  NEW   PROMISE.  203 

3.  An  acknowledgment  of  a  general  indebtedness,  merely, 
will  not  suffice ;  it  must  be  broad  enough  to  include  the 
specific  debt  in  question,  and  yet  sufficiently  precise  and 
definite  to  indicate  unmistakably  such  debt.^^ 

4.  We  have  seen  that  an  acknowledgment,  effectual  to 
remove  the  bar  of  the  statute,  must  be  equivalent  to  a  new 
promise.  It  follows  that  an  acknowledgment,  although  in 
other  respects  complete,  which  is  so  guarded  and  qualified 
by  the  maker  as  to  negative  a  promise  or  which  cannot 
be  fairly  construed  into  a  promise,  will  not  suffice.^" 

5.  Part  payment  of  a  debt  will,  as  a  rule,  take  it  out 
of  the  statute.  The  fact  of  payment  is  an  acknowledgment 
of  an  existing  indebtedness,  and  on  such  acknowledgment 
the  law  raises  a  promise  of  payment.^"  But  it  must  appear 
that  the  payment  is  made  only  as  a  part  of  a  larger  debt; 
for  in  the  absence  of  conclusive  testimony,  it  will  not  be 


Reeves,  12  Pa.  St.  264 ;  Dinsmore  v.  Dinsmore,  21  Me.  433 ;  Chel- 
syn  V.  Dalby,  4  Young  &  C.  238;  Barnard  v.  Bartholomew,  22 
Pick.  291;  Davis  v.  Steiner,  14  Pa.  St.  275;  Hale  v.  Hale,  4 
Humph.   183 ;   Thompson  v.  French,  10  Yerg.  453. 

15  Moore  v.  Hyman,  13  Ired.  272 ;  Buckingham  v.  Smith,  23 
Conn.  453 ;  Dawson  v.  King,  20  Md.  442 ;  Stafford  v.  Bryan,  3 
Wend.  532 ;  Clark  v.  Dutcher,  9  Cow.  674. 

i«  Tanner  v.  Smart,  6  B.  &  C.  609;  Mitchell  v.  Selman,  5  Md. 
376;  Danforth  v.  Culver,  11  Johns.  146;  Creuse  v.  Defiganier,  10 
Bosw.  122;  Lawrence  v.  Hopkins,  13  Johns.  288;  Brown  v.  State 
Bank,  10  Ark.  134;  Martin  v.  Broach,  6  Ga.  21;  Conway  v.  Rey- 
burn,  22  Ark.  290;  Arey  v.  Stephenson,  11  Ired.  L.  86;  Robbins 
V.  Farley,  2  Strobh,  348. 

173  Pars.  Cont.  p.  80,  et  seq.;  2  Sch.  Pers.  Prop.  pp.  691-694; 
Bish.  Cont.  (2nd  Enl.  Ed.),  §  1363;  Whipple  v.  Stevens,  2  Foster, 
219;  Baxter  v.  Penniman,  8  Mass.  134;  Bodger  v.  Arch,  28  Eng. 
L.  &  Eq.  464;  Bank  of  Utica  v.  Ballou,  49  N.  Y.  155;  Walker  v. 
Wait,  50  Vt.  668;  Cucully  v.  Hermandez,  103  U.  S.  105;  Engman  v. 
Immel,  59  Wis.  249;  Click  v.  Crist,  Z7  Ohio  St.  388;  Buxton  v. 
Edwards,   134  Mass.  567. 


204  NEW    PROMISE.  [§  120. 

deemed  an  admission  of  any  more  indebtedness  than  the 
sum  paid.^® 

6.  The  Statute  of  Limitations  affects  the  remedy  only; 
it  does  not  discharge  the  debt,  but  simply  bars  an  action 
upon  it  after  the  lapse  of  the  statutor)'  limitation. ^^  Hence 
it  follows  logically  that,  while  the  remedy  by  action  is  gone 
with  the  lapse  of  the  limitation,  a  lien  or  security  for  the 
debt  is  not  lost  by  the  running  of  the  statute ;  and  to  such 
effect  is  the  weight  of  judicial  authority. ^*^ 

7.  No  new  consideration  is  requisite  to  validate  a  new 
promise,  whether  it  be  a  promise  made  in  fact  by  the 
debtor,  or  one  made  for  him  by  operation  of  law.  As  the 
debt  itself  is  not  paid  or  discharged  by  the  running  of  the 
statute,  the  original  consideration  will  sustain  the  new 
promise.^^  The  renewal  of  a  debt  barred  by  the  statute, 
so  far  as  the  necessity  of  a  new  consideration  to  sustain 
a  new  promise  is  concerned,  must  not  be  confounded  with 
the  voluntary  release  of  a  debt  by  the  creditor  for  a  suf- 
ficient consideration,  or  under  seal  without  consideration 
in  fact,  in  which  case  the  debt  itself  is  discharged.  A  new 
promise,  founded  on  a  new  and  sufficient  consideration, 
may  create  a  new  contract,  obUging  the  debtor  to  pay  the 
old  debt ;  but  this  contract  will  not  rest  upon  the  original 


1*  Tippets  V.  Heane,  Cromp.  M.  &  R.  252;  Linsell  v.  Bonsor,  2 
Bing.  N.  C.  241 ;  Waugh  v.  Cope,  6  M.  &  W.  824 ;  Hodge  v.  Ma- 
cauley,  25  Vt.  216;  Pickett  v.  King,  34  Barb.  193;  Lock  v.  Wilson, 
9  Heisk,  784,   10  Heisk,  441 ;  Harris  v.  Howard,  56  Vt.  695. 

19  3  Pars.  Cont.  pp.  100,  101 ;  2  Sch.  Pers.  Prop.  p.  693. 

20  Spears  v.  Hartley,  3  Esp.  81;  Williams  v.  Jones,  13  East,  439; 
Higgins  V.  Scott,  2  B.  &  Ad.  413;  Mayor  of  N.  Y.  v.  Colgate.  2 
Duer,  1,  12  N.  Y.  140;  Alexander  v.  Whipple.  45  N.  H.  502;  Pratt 
V.  Huggins,  29  Barb.  277. 

2iBish.  Cont.  (2nd  Enl.  Ed.),  §§  1360,  1361. 


§  120.]  NEW     PROMISE.  205 

consideration  as  in  case  of  limitation,  for  that  consideration 
died  with  the  original  obhgation  of  which  it  formed  the 
basis.^^ 

There  are  some  other  incidental  rules  of  minor  import- 
ance pertaining  to  this  topic,  which  cannot  be  noticed  un- 
der the  Hmitations  of  this  treatise ;  but  the  foregoing  outline 
view  of  the  general  principles  governing  the  subject,  will, 
it  is  believed,  furnish  a  sufficient  guide  to  the  student  and 
the  practitioner. 

22  See  Bish.  Cont.  (2nd  Enl.  Ed.),  §  1360,  in  connection  with 
§  §  95-99;  also  Hale  v.  Rice,  124  Mass.  292;  Dunham  v.  Johnson, 
135  Mass.  310;  Valentine  v.  Foster,  1  Met.  520;  Montgomery  v. 
Lampton  9  Met,  (Ky.),  519;  Warren  v.  Whitney,  24  Me.  561; 
Snevily  v.  Read.  9  Watts,  396. 


206  INSURANCE,  DEFINITION,  ETC.  [§  121. 


CHAPTER  XI. 
INSURANCE. 

§     121.  Definition  and  terms  employed. 

122.  Nature,  and  form,  of  the  contract. 

123.  Classes  of  policies. 

124.  Consummation  of  the  contract. 

125.  Subject-matter  of  the  contract. 

126.  Insurable   interest. 

127.  Warranties  ;   representations  ;   statements. 

128.  Special  provisions  of  the  contract. 

129.  Mutual  insurance. 

§  121.  Definition,  and  terms  employed. — The  risk  or 
policy  of  insurance,  being  a  species  of  incorporeal  personal 
property,  is  entitled  to  recognition  in  this  treatise,  but  for 
a  full  discussion  of  the  subject  in  all  its  details,  reference 
must  be  had  to  works  specially  devoted  to  insurance  law. 

Insurance  is,  in  brief,  a  contract  of  indemnity  against 
a  loss  which  may  arise  on  the  occurrence  of  some  event. 
It  may  provide  for  the  payment  of  a  specified  sum  in  case 
of  loss,  as  in  marine  and  fire  insurance  contracts;  or  for 
the  payment  of  the  stipulated  value  of  the  articles  insured, 
as  provided  in  what  are  termed  "valued  policies"  in  fire 
insurance;  thus  putting  the  party  insured  in  as  good  a 
condition  as  he  would  have  been  had  no  loss  occurred.  Or, 
as  in  "open"'  or  non-valued  fire  insurance  contracts,  the 
provision  for  indemnity  may  be  only  for  the  repayment  of 
expenses  incurred,  and  payment  for  the  lost  property  at 
its  market  value  at  the  commencement  of  the  risk.  In 
either  case  the  insurer  takes  upon  himself  certain  risks  to 
which  the  insured  would  otherwise  be  exposed ;  and  hence 


§  122.]  NATURE  AND  FORM   OF  CONTRACT.  207 

the  contract  of  insurance  is  like  in  character  and  effect  to 
a  bond  of  indemnity,  or  the  guaranty  of  a  debt.^ 

The  party  undertaking  to  make  the  indemnity  is  called 
the  insurer  or  assurer;  the  party  indemnfied,  the  insured 
or  assured;  the  consideration  of  the  contract  is  called  the 
premium;  the  instrument  embodying  the  contract  is 
termed  the  policy;  the  events  and  causes  of  loss  insured 
against  are  named  risks  or  perils;  and  the  property  or 
rights  of  the  insured,  in  respect  of  which  he  is  liable  to 
loss,  constitutes  the  subject-matter  of  the  insurance,  or 
insurable  interest.^ 

§  122.  Nature,  and  form,  of  the  contract. — It  is  a  per- 
sonal contract,  and  does  not  run  with  the  subject  matter 
of  the  insurance,  unless  by  force  of  special  stipulations 
which  are  not  usual  or  legitimate  elements  of  the  contract 
itself.^  Whatever  may  be  the  kind  or  form  or  insurance, 
the  object  and  intent  of  the  contract  is  indemnity,  as  shown 
in  the  last  section,  supra.  Whether  the  contract  provides 
for  the  payment  of  a  fixed  simi  on  the  occurrence  of  a 
certain  event,  as  in  the  case  of  life  and  marine  insurance, 
and  of  valued  policies  in  fire  insurance;  or  simply  guar- 
antees indemnity  for  loss,  whatever  it  may  be,  within  the 
limitations  and  conditions  of  the  contract,  as  in  the  case  of 
open  or  non-valued  policies;  the  principle  is  the  same,  the 
distinction  between  the  different  kinds  and  forms  of  con- 
tract being  only  in  the  measure,  and  mode  of  determining 

1  Phillips,  Ins.  p.  1;  May,  Ins.  §§  1,  2,  8;  Williams,  Pers.  Prop, 
p.  175;  1  Sch.  Pers.  Prop.  p.  677;  Bouv.  L.  Diet.  "Insurance;"  Lucena 
V.  Crawford,  2  Bos.  &  Pul.  N.  R.  300. 

2  Citations  last,  supra. 

3  May,  Ins.  §  6;  Wilson  v.  Hill,  3  Met.  (Mass.),  66;  Disbrow  v. 
Jones,  Harr.  (Mich.),  Ch.  48;  Carpenter  v.  Providence,  Wash. 
Ins.  Co.,  16  Pet.  495 ;  Sadlers'  Company  v.  Babcock,  2  Atk.  554. 


208  NATURE  AND   FORM   OF   CONTRACT.  [§  122. 

the  amount  of  indemnity  in  case  of  loss.*  In  the  further 
discussion  of  the  subject,  therefore,  the  different  kinds  of 
insurance,  mutual  excepted,  will  not  be  treated  separately. 
Mutual  insurance  has  some  peculiar  features  which  are 
pointed  out  in  a  subsequent  section.^ 

Re-insurance  is  an  indemnity  to  the  insurer  against  a 
loss  from  a  risk  already  assumed  by  him.  The  insurer 
by  a  contract  with  another  party  becomes  the  insured 
against  loss  on  a  risk  for  which  he  is  the  insurer.  The 
new  contracting  party  undertakes  in  reference  to  the 
first  insurer,  what  the  latter  has  undertaken  in  reference 
to  the  party  insured  by  him,  and  subjects  to  like  rights, 
duties  and  obligations.® 

The  original  insured  remains  liable  on  his  contract 
with  the  party  insured  by  him.  There  being  no  privity  of 
contract  between  the  latter  and  the  re-insurer,  he  has  no 
claim  upon  him  in  case  of  loss.^  If  a  loss  occurs  the  re- 
insured may  have  no  action  against  the  reinsurer,  without 
first  paying  the  loss  to  the  original  insured.  To  maintain 
the  action  he  must  prove  his  interest  in  the  subject  matter, 
and  the  fact  and  amount  of  loss,  as  the  original  insured 
must  have  proved  them  against  him,  and  he  is  entitled  to 
the  same  defenses  that  are  available  to  the  original  insurer 
on  the  first  contract.^ 


*  May,  Ins.  §  7. 

"^i  129. 

6  May,  Ins.  §§  9,  11 ;  1  Sch.  Pers.  Prop.  p.  686;  3  Kent,  Com.  p. 
279 ;  1  Phillips,  Ins.  §§  78a,  404. 

^  1  Sch.  Pers.  Prop.  p.  688 ;  3  Kent,  Com.  p.  279 ;  Bowery  Fire 
Ins.  Co.  V.  N.  Y.  Ins.  Co.,  17  Wend.  359;  Philadelphia  Ins.  Co.  v. 
Washington  Ins.  Co.,  23  Pa.  St.  250;  Eagle  Ins.  Co.  v.  Lafayette 
Ins.  Co.,  9  Ind.  443. 

8  May,  Ins.  §  11;  3  Kent,  Com.  p.  279;  New  York  Mar.  Ins.  Co. 
V.    Prot.   Ins.    Co.,    1    Story    (C.    C.    Rep.),   458;    Eagle   Ins.   Co.   v. 


§  123.]  CLASSES   OF   POLICIES.  209 

Double  insurance  means  two  or  more  insurances  on  the 
same  risk,  and  the  same  interest.  But,  as  the  insured  is 
only  entitled  to  indemnity,  he  can  recover  no  more  than 
enough  for  that  purpose  in  case  of  loss.  He  may,  how- 
ever, recover  his  whole  loss  of  any  one  of  his  insurers; 
and  the  one  paying  the  loss  will  have  a  claim  for  contri- 
bution against  the  other  insurers  for  their  respective  pro- 
portions of  the  amount  paid;  the  several  insurers  holding 
substantially  the  relation  to  each  other  of  co-sureties, 
with  the  like  rights,  duties,  and  obligations.*  The  amount 
of  recovery  against  any  one  of  the  co-insurers  is  now 
quite  generally  limited  in  the  contract  to  such  proportion 
of  the  loss  as  the  amount  insured  by  him  bears  to  the 
aggregate  amount  of  insurance.^*^ 

The  form  of  the  contract  is  not  essential.  If,  as  a  whole, 
on  a  fair  and  reasonable  interpretation,  it  imports  an  in- 
surance, it  will  stand,  however  informal  and  inartificial  in 
structure.  Written  insurance  contracts,  termed  policies, 
are  quite  generally  in  use,  and  are  advisable  in  all  cases, 
but,  on  the  weight  of  authority,  an  oral  contract  may  be 
valid  when  not  contrary  to  statute.^^ 

§  123.  Classes  of  policies. — There  are  three  classes  of 
policies ;  valued,  and  open;  wager  and  interest;  and  time 
and  voyage. 

Lafayette  Ins.  Co.,  9  Ind.  443;  Hone  v.  Mut.  Safety  Ins.  Co.,  1 
Sandf.   137. 

8  May,  Ins.  §  13;  1  Sch.  Pens.  Prop.  pp.  688,  689;  3  Kent,  Com. 
pp.  281,  282;  Lucas  v.  Jefferson  Ins.  Co.,  6  Cow.  635;  Peoria  Marine 
&  Fire  Ins.  Co.  v.  Lewis,  18  111.  553 ;  Merrick  v.  Germania  Fire  Ins. 
Co.,  54  Pa.  St.  277;  Baltimore  Fire  Ins.  Co.  v.  Lovey,  20  Md.  20; 
Gordon  v.  London  Assurance  Co.,  1  Burr.  492. 

^°  Citations  last,  supra. 

"  May,  Ins.  §  14,  et  seq. ;  1  Sch.  Pers.  Prop.  p.  680 ;  Fland.  Fire 
Ins.  62,  63 ;  Commercial,  etc.,  Ins.  Co.  v.  Union  Mut.  Ins.  Co.,  19 
14 


210  CLASSES  OF  POUCIES.  [§  123. 

A  valued  policy  is  one  in  which  the  value  of  the  prop- 
erty insured,  and  the  sum  to  be  paid  in  case  of  loss,  are 
fixed  by  the  terms  of  the  contract;  and  in  an  action  on 
the  policy  by  the  insured,  when  the  loss  is  total,  no  proof 
on  these  points  dehors  the  written  contract  is  requisite  or 
admissable.  And  if  the  insurance  be  upon  several  articles 
of  equal  value  at  a  stipulated  aggregate  valuation,  the 
insured  will  recover  for  the  loss  of  one  the  proportion 
which  it  bears  to  the  whole.^^ 

An  open  policy  is  one  in  which  the  value,  and  damages 
in  case  of  loss,  are  not  fixed  by  the  policy,  but  left  open 
to  be  proved,  or  otherwise  determined  by  the  parties, 
which  determination  is  called  adjustment  of  the  loss."  The 
same  policy,  it  should  be  noticed,  may  be  open  as  to  one 
or  more  articles  insured,  and  valued  as  to  others.^* 

A  wager  policy  is  one  in  which  the  insured  has  no  in- 
terest, nothing  insurable,  and  hence  runs  no  risk.  It  is, 
in  other  words,  a  gambling  contract.  The  want  of  interest 
appears  by  the  terms  of  the  policy,  indicated  by  such  ex- 
pression as,  "Without  further  proof  of  interest  than  the 
policy,"  "interest  or  no  interest"  and  the  like. 

Wager  policies  are  prohibited  in  England,  and  such 
clauses  as  those  just  quoted  are  held  as  conclusive  proof 
that  the  contract  is  a  wager.     But  in  this  country  it  has 


How.  318;  Davenport  v.  Peoria,  etc.,  Ins.  Co.,  17  Iowa,  276;  Baptist 
Church  V.  Brooklyn  Ins.  Co.,  19  N.  Y.  305. 

12  May,  Ins.  §§  30,  31 ;  1  Sch.  Pers.  Prop.  pp.  680,  681. 

13  Citations  last,  supra.  And  see  Alsop  v.  Com.  Ins.  Co.,  1  Sum- 
ner, 451;  Carson  v.  Marine  Ins.  Co.,  2  Wash.  C.  C.  468;  Haight  v. 
De  la  Cour,  3  Camp.  319;  Feise  v.  Aquilar,  3  Taunt.  506;  Holmes 
V.  Charlestown  Mut.  Fire  Ins.  Co.,  10  Met.  (Mass.),  211;  Cushman 
V.  North  Western  Ins.  Co.,  34  Me.  487;  Harris  v.  Eagle  Ins.  Co., 
5  Johns.  368. 

"  May,  Ins.  §  32 ;  Post  v.  Hampshire  Mut.  Ins.  Co.,  12  Mass.  555 ; 
Cushman  v.  North  Western  Ins.  Co.,  34  Me.  487. 


§  124.]  CONSUMMATION   OF  THE   CONTRACT.  211 

been  held  that  these  clauses  are  only  prima  facie  evidence, 
and  are  open  to  explanation.  As  to  whether  wager  con- 
tracts are  enforceable  the  authorities  in  this  country  are 
not  in  full  agreement.^^  But  the  better  opinion,  in  accord- 
ance with  sound  morality  and  the  demands  of  public 
policy,  is  against  the  enforcement  of  such  contracts,  how- 
ever christened,  or  in  whatever  guise  they  may  appear. 

Mr.  Bishop  in  his  work  on  Contracts,  uses  this  lan- 
guage: "And  on  a  just  view  of  things,  a  judge  would 
better  serve  the  state,  and  more  adorn  his  office,  to  go  round 
with  blacking  and  brush  shining  the  boots  of  the  officers 
of  his  court,  than  to  sit  on  the  bench  enforcing  a  wager."^^ 

An  interest  policy  is  one  in  which,  by  its  terms,  the  in- 
sured has  an  interest  in  the  subject  matter  of  the  insurance 
and  hence  a  risk  constituting  the  basis  for  indemnity  in 
case  of  loss.^^ 

A  time  policy,  as  its  name  indicates,  is  one  in  which  the 
duration  of  the  risk  is  fixed  by  definite  periods  of  time. 

A  voyage  policy  is  one  in  which  the  duration  of  the  risk 
is  determined  by  geographical  limits,  as  from  New  York 
to  Glasgow,  and  is  applicable,  also,  to  transportation  by 
land  as  well  as  by  water.^® 

§  124.  Consummation  of  the  contract. — As  a  general 
rule,  delivery  of  a  written  contract,  whether  a  specialty  or 
a  simple  contract,  is  essential  to  its  completion  and  valid- 
ity.    Otherwise  stated,  if  the  parties  intend  to  reduce  the 


15  Winchester  v.  Nutter,  52  N.  H.  507;  Ball  v.  Gilbert,  12  Met. 
395,  399;  Wilkinson  v.  Tousley,  16  Minn.  299;  Hill  v.  Kidd,  43  Cal. 
615;  Merchants'  Savings,  etc.,  Co.  v.  Goodrich,  75  111.  554;  Boughner 
V.  Meyer,  5  Colo.  71 ;  Gridley  v.  Dorn,  57  Cal.  78. 

"Bish.  Cont.   (2nd  Enl.  Ed.),  §  531. 

"  May,  Ins.  %  33;  3  Kent,  Com.  pp.  371,  277,  278. 

18  May,  Ins.  §  34;  Boehem  v.  Combe,  2  M.  &  S.  172. 


212  CONSUMMATION   OF   THE   CONTRACT.  [§  124. 

agreement  to  writing,  it  will  not  take  effect  until  delivery 
of  the  intended  written  instrument. ^^  There  is,  however, 
authority  for  saying  that  there  are  exceptions  to  the  gen- 
eral rule;  that  parties  may  be  bound  by  an  agreement,  if 
perfect  in  all  other  respects,  even  where  it  is  thereafter  to 
be  reduced  to  writing,  in  the  absence  of  a  stipulation  to 
the  contrary.  But  the  fact  that  the  parties  do  intend  a 
reduction  of  their  agreement  to  writing,  will  be  regarded 
as  strong  evidence  that  they  did  not  consider  the  unwritten 
negotiations  as  constituting  a  complete  and  binding  con- 
tract.=^° 

Insurance  contracts,  more  frequently  than  most  others, 
fall  within  the  exception  to  the  general  rule.  This  may 
be  due  to  the  character  of  these  contracts,  and  the 
machinery  of  insurance  companies  and  their  agencies. 
Where  negotiations  for  insurance  have  been  had,  the  ques- 
tion sometimes  arises  whether  such  negotiations  have  re- 
sulted in  an  agreement  binding  upon  the  parties,  and  in 
some  cases  this  question  is  not  readily  solved.  The  test 
applied  by  the  courts  is :  Have  the  parties  come  to  a  definite 
agreement  upon  all  the  elements  and  terms  of  the  con- 
tract, so  that  nothing  remains  to  be  done,  but  fill  up 
and  deliver  the  policy  by  the  insurers,  and  to  pay  the 
premium  by  the  insured?  If  yea,  the  contract  is  consum- 
mated, in  the  absence  of  a  stipulation  by  the  parties,  and 

i9Bish.  Cont.  (2nd  Enl.  Ed.),  §  349,  and  cases  cited. 

20  Waldo's  Pollock,  Cont.  pp.  41,  42;  Pratt  v.  Railroad  Co.,  21 
N.  Y.  305;  Blaney  v.  Hoke,  14  Ohio  St.  292;  Bell  v.  Offutt,  10 
Bush,  632;  Blight  v.  Ashley,  1  Pet.  C.  C.  15;  Wharton  v.  Stough- 
tenburgh,  35  N.  J.  Eq.  266 ;  Paige  v.  Fullerton  Woolen  Co.,  27  Vt. 
485;  Ridgway  v.  Wharton,  6  H.  L.  C.  238,  264,  268;  Lyman  v. 
Robinson,  14  Allen,  242,  254;  Brown  v.  Railroad  Co.,  44  N.  Y.  79, 
86;  Methudy  v.  Ross,  10  Mo.  App.  101,  106. 


§  124.]  CONSUMMATION   OF   THE   CONTRACT.  213 

of  a  law,  making  delivery  of  the  policy  essential  to  the 
validity  of  the  agreement;  if  nay,  the  contract  is  not  com- 
pleted.^^ Where  the  terms  are  all  agreed  upon  by  the 
parties,  the  liability  of  the  insurers  may  become  fixed  be- 
fore the  issuance  of  the  policy,  so  that  the  insured  will 
be  entitled  to  recovery  for  a  loss  happening  in  the  interim ; 
and  if  the  insurers  refuse  to  issue  a  policy  in  pursuance  of 
the  agreement,  when  the  rights  and  interests  of  the  insured 
require  it,  a  court  of  equity  will  compel  its  issuance.^^ 

When  the  negotiations  are  conducted  by  written  cor- 
respondence through  the  mail,  the  time  when  the  contract 
is  consummated  so  as  to  bind  both  parties  has  been  much 
discussed,  and  developed  some  difference  of  judicial 
opinion.  The  same  rule  that  governs  other  contracts  thus 
negotiated,  and  which  is  fully  treated  in  works  specially 
devoted  to  the  subject  of  contracts,  applies  to  insurance 
negotiations  and  contracts  as  well. 

Where  delivery  of  the  policy  is  essential  to  the  con- 
summation of  a  contract,  the  question  occurs :  What  con- 
stitutes delivery?  Obviously,  an  actual  manual  transfer 
from  one  party  to  the  other  will  constitute  a  delivery. 
But  this  is  not  a  necessary  formality.  It  has  been  well  said 
that  the  "delivery  may  be  by  any  act  intended  to  signify 


21  May,  Ins.  §  44;  Hallock  v.  Commercial  Ins.  Co.,  2  Dutch  (N.  J.), 
268;  3  Dutch.  (N.  J.),  645;  Flint  v.  Ohio  Ins.  Co.,  8  Ohio,  501; 
Am.  Home  Ins.  Co.  v.  Patterson,  28  Ind.  17;  Xenos  v.  Markham, 
2  Law  Repts.  (H.  L.),  296;  Kelly  v.  Commonwealth  Ins.  Co.,  10 
Bosw.  82 ;  Com.  Mut.  Marine  Ins.  Co.  v.  Union  Mut.  Ins.  Co., 
19  How.  318;  New  England,  etc.,  Ins.  Co.  v.  Robinson,  25  Ind.  536; 
Davenport  v.  Peoria,  etc.,  Ins.  Co.,  17  Iowa,  276. 

22  May,  Ins.  §  45 ;  Kohne  v.  Ins.  Co.  of  North  America,  1  Wash. 
(U.  S.  C.  C),  93;  Goodall  v.  N.  E.  Mut.  Fire  Ins.  Co.,  5  Fost. 
(N.  H.),  169;  and  see,  also,  citations  last  supra. 


214  INSURABLE    INTEREST.  [§  126. 

that    the  instrument   shall   have   present  validity ."^^     The 
question  of  delivery  is  often  one  of  intention.^* 

Mr.  Justice  Dodderidge,  in  his  Sheppard's  Touchstone, 
quaintly  defines  delivery  thus :  "Delivery  is  either  ac- 
tual, i.  e.,  by  doing  something  and  saying  nothing;  or  else 
verbal,  i.  e.,  by  saying  something  and  doing  nothing;  or  it 
may  be  by  both ;  and  either  of  these  may  make  a  good  deliv- 
ery and  a  perfect  deed."-^ 

§  125.  Subject-matter  of  the  contract. — The  field  of  in- 
surable property  is  very  broad.  Any  property  which  is 
the  subject  of  lawful  ownership  or  use,  and  which  law- 
fully employed,  may  be  insured.  The  doctrine  is  well 
stated  by  May  as  follows :  "Whatever  has  an  appreciable 
pecuniary  value,  and  is  subject  to  loss  or  deterioration, 
or  of  which  one  may  be  deprived,  or  which  he  may  fail 
to  realize,  may  properly  constitute  the  subject  matter  of 
insurance."-^  This  statement,  it  will  be  seen,  embraces 
every  species  of  property,  real,  personal,  and  mixed; 
corporeal  and  incorporated ;  in  esse  or  in  posse;  and  in  pos- 
session or  expectancy.  The  doctrine  thus  broadly  and  com- 
prehensively stated  is  fully  sustained  by  the  authorities.-^ 

§  126.  Insurable  interest. — That  the  insured  must  have 
some  insurable  interest  in  the  subject  matter  of  the  insur- 


23Hallock  V.  Com.  Ins.  Co..  2  Dutch.  (N.  J.),  268;  s.  c.  3  Dutch. 
<N.  J.),  645. 

2*  May,  Ins.  §  60 ;  Whittaker  v.  Farmers'  Union  Ins.  Co.,  29  Barb. 
312;  Kentucky  Mut.  Co.  v.  Jenks,  5  Ind.  96. 

25  1  Shep.  Touch.  57. 

26  May,  Ins.  §  72. 

27  May,  Ins.  §§  71-73;  Wilson  v.  Hill,  3  Met.  66;  Carpenter  v. 
Prov.  Wash.  Ins.  Co.,  16  Pet.  495 ;  Ellicott  v.  United  States  Ins.  Co., 
8  Gill  &  Johns.  (Md.),  166;  Carter  v.  Boehm,  3  Burr.  1095;  Lucena 
V.  Crawford,  2  New  Rep.  301. 


§  126.]  INSURABLE   INTEREST.  215 

ance  is  a  cardinal  and  well  established  principle.  Without 
such  interest  the  contract  would  be  essentially  a  gambling 
contract,  and  hence  invalid.^^  This  rule,  it  should  be  un- 
derstood, applies  only  to  an  insurance  for  the  benefit  of  a 
party  to  the  contract.  A  person  having  no  insurable  in- 
terest in  the  subject-matter  may  insure  in  his  own  name 
for  the  benefit  of  the  true  owner  of  the  property.^^  It  is 
not  easy  to  define  with  accuracy  what  constitutes  an  in- 
surable interest,  so  as  to  relieve  the  question  from  doubt  in 
all  cases  that  may  arise,  but  it  may  suffice  for  practical 
purposes  in  general  to  say,  that  the  insured  must  have  such 
an  interest  in  the  subject-matter  as,  in  case  of  its  destruc- 
tion, or  injury,  he  would  suffer  pecuniary  damage.  Within 
this  rule  the  property,  title,  or  interest,  of  the  insured  in 
or  to  the  subject-matter  of  the  insurance  may  be  absolute 
or  qualified,  general  or  special,  legal  or  equitable,  existent 
or  potential,  present  or  prospective.  Numerous  examples 
are  furnished  by  the  books.^*^  From  a  legitimate  practical 
application  of  this  doctrine,  it  logically  follows  that  there 
may  be  separate  insurable  interests  in  the  same  property, 
as  the  legal,  and  equitable,  title  or  interests,  and  in  other 
cases  embraced  in  the  principle  stated.^^ 

^»  Supra,  §  123;  May,  Ins.  §§  33,  74;  1  Sch.  Pers.  Prop.  p.  682; 

1  Bouv.  L.  Diet.  "Insurable  Interest;"  3  Kent,  Com.  p.  262. 

29  1  Sch.  Pers.  Prop.  p.  684;  Fland.  Fire  Ins.  378;  Turner  v. 
Burrows,  8  Wend.  144;  Work  v.  Merchants',  etc.,  Fire  Ins.  Co.,  11 
Cush.  271. 

2<>  May,  Ins.  §  76,  et  seq. ;  3  Kent,  Com.  p.  262,  et  seq. ;  1  Sch. 
Pers.  Prop.  p.  682,  et  seq. ;  Bouv.  L.  Diet.  "Insurable  Interest." 

31  May,  Ins.  §  81,  et  seq.;  1  Sch.  Pers.  Prop.  pp.  682-684;  Strong 
V.  Manuf.  Ins.  Co.,   10  Pick.  40;  Columbian  Ins.  Co.  v.  Lawrence, 

2  Pet.  725;  Allen  v.  Franklin  Ins.  Co.,  9  How.  Pr.  Rep.  501; 
Franklin  Ins.  Co.  v.  Findlay,  6  Whart.  (Pa.),  483;  Niblo  v.  North 
Am.  Ins.  Co.,  1  Sandf.  551 ;  Fletcher  v.  Commonwealth  Ins.  Co., 
18  Pick.  419;  Tongue  v.  Nutwell,  31  Md.  302;  Franklin  Ins.  Co.  v. 


216  WARRANTIES    AND    REPRESENTATIONS.  [§  127. 

To  entitle  the  insured  to  recover  on  his  contract,  he  must 
have  had  an  interest  in  the  subject-matter  at  the  time 
when  it  was  consummated,  and  also  where  the  loss  oc- 
curred.^^  It  follows  that  alienation  of  the  insured  prop- 
erty after  insurance,  continued  until  occurrence  of  the  loss 
will  bar  a  recovery  of  the  party  insured;  and  it  has  been 
held  that  alienation  of  title  will  have  this  effect,  even  al- 
though the  insured  should  regain  title  and  hold  it  at  the 
time  of  the  loss.^^  But  the  soundness  of  this  desision  is 
much  doubted.^* 

Modern  policies  quite  generally,  if  not  in  all  cases,  con- 
tain stipulations  in  regard  to  the  assignment  of  the  policy, 
and  the  alienation  of  the  subject-matter  of  insurance. 
These  stipulations,  as  contrued  by  the  courts,  determine 
the  rights  of  the  respective  parties. 

§  127.  Wairanties,  and  representations. — Statements, 
provisos,  conditions,  by-laws,  and  stipulations  of  various 
kinds,  when  found  in  the  policy  and  expressly  made  part 
of  it,  become  warranties,  and  are  so  held  and  treated  by 
the  courts.  A  warranty,  it  is  held,  is  an  agreement  in  the 
nature  of  a  condition  precedent,  and  must  be  strictly  com- 
plied with.^^    The  existence  or  non-existence  of  a  warranty 


Drake,  2  B.  Mon.  (Ky.),  47;  Abbott  v.  Hampden  Mut.  Fire  Ins. 
Co.,  30  Me.  414;  Harris  v.  York  Mut.  Ins.  Co.,  50  Pa.  St.  341;  and 
many  other  cases,  illustrating  the  application  of  the  doctrine,  too 
numerous  for  citation. 

••2  May,  Ins.  §  100;  1  Sch.  Pers.  Prop,  p  685;  Howard  v.  Albany 
Ins.  Co.,  3  Denio,  301 ;  Fowler  v.  Indemnity  Ins.  Co.,  26  N.  Y.  422 ; 
Lynch  v.  Dalzell,  3  Bro.  P.  C.  492;  Sadlers'  Co.  v.  Babcock,  2  Atk. 
534. 

33  Cockerel!  v.  Cincinnati  Ins.  Co.,  16  Ohio,  148. 

3*  May,  Ins.  §§  101,  265,  and  cases  there  cited;  Worthington  v. 
Bearse,  12  Allen,  382;  Hooper  v.  Hudson  River  Ins.  Co.,  17  N.  Y. 
424,  426;  West  Branch  Ins.  Co.  v.  Helfenstein,  40  Pa.  St.  289. 

•5  Daniels  v.   Hudson  River  Fire   Ins.   Co.,    12  Cush.  416 ;  Ripley 


§  127.]  WARRANTIES    AND    REPRESENTATIONS.  217 

will  not  depend  in  any  case  upon  a  particular  form  of 
words;  but  any  statement  or  stipulation,  upon  the  literal 
truth  or  fulfillment  of  which  it  is  apparent  that  the  parties 
intend  to  rest  the  validity  of  the  contract,  will  constitute 
a  warranty.'^®  And  whether  the  fact  stated  or  stipulation 
made  be  material  to  the  risk,  or  otherwise,  will  not  affect 
the  question  of  warranty. ^^ 

Of  warranties  there  are  two  classes,  affirmative,  and 
promissory.  The  former  concern  the  present,  being  such 
as  affirm  the  existence  or  non-existence  of  some  fact  at  the 
time  of  insurance;  while  the  latter  look  to  the  future,  re- 
quiring something  to  be  done  or  omitted  by  the  insured 
during  the  continuance  of  the  risk.  A  breach  of  either 
will  void  the  contract.^^ 

A  representation  is  defined  as  "a  statement  incidental 
to  the  contract,  relative  to  some  fact  having  reference 
thereto,  and  upon  the  faith  of  which  the  contract  is  en- 
tered into."^®  The  difference  between  a  warranty  and  a 
representation  is,  in  brief,  this :  the  former  enters  into 
and  become  an  essential  part  of  the  contract,  while  the 
latter  is  a  statement  incidental  or  collateral  to  the  contract. 


V.  .Etna  Fire  Ins.  Co.,  30  N.  Y.  136;  Campbell  v.  N.  E.  Mut.  Life 
Ins.  Co.,  98  Mass.  381 ;  May,  Ins.  §  156,  et  seq. ;  3  Kent,  Com.  p. 
289;  1  Sch.  Pers.  Prop.  pp.  686-688. 

•■'•*  Citations  last  supra;  and  Westfall  v.  Hudson  River  Fire  Ins.  Co. 
2  Duer,  490,  494;  Kingsley  v.  N.  E.  Mut.  Fire  Ins.  Co.,  8  Cush.  393 

37  Sayles  v.  North  Western  Ins.  Co.,  2  Curtis  (U.  S.  C.  C),  612 
New  Castle  Fire  Ins.  Co.  v.  McMorran,  3  Dow.  P.  C.  255 ;  Witherell 
V.   Marine  Ins.    Co.,  49   Me.  200;    Pawson   v.   Watson,   Cowp.    785 
Anderson  v.  Fitzgerald,  24  Eng.  L.  &  Eq.  1 ;  4  H.  of  L.  Cas.  484 

38  Citations    supra   and    Borradaile   v.    Hunter,    5    M.    &    G.    639 
Jennings  v.  Chenango  Co.  Mut.  Ins.  Co.,  2  Denio,  75 ;  Stout  v.  City 
Fire  Ins.  Co.,  12  Iowa,  371. 

3»May,  Ins.  §  181. 


218  WARRANTIES    AND    REPRESENTATIONS.  [§  127. 

If  an  affirmative  representation  be  material  to  the  risk, 
and  substantially  false,  the  contract  cannot  be  enforced, 
and  the  breach  of  a  material  promissory  representation 
will  have  the  same  effect.  But,  as  already  stated,  under 
warranties  the  question  of  materiality  does  not  arise. 
They  must  be  strictly  and  literally  complied  with,  whether 
material  or  immaterial  to  the  risk,  while  a  substantial 
compliance  with  a  representation  in  such  particulars  as 
may  reasonably  be  supposed  to  have  influenced  the  insur- 
ers in  consummating  the  contract,  will  suffice.*" 

Representations,  like  warranties,  are  of  two  kinds, 
affirmative  and  promissory.  The  former  are  allegations 
of  facts  existing  at  the  time  the  contract  is  made;  the 
latter  are  statements  or  promises  in  regard  to  matters  in 
the  future  during  the  term  of  insurance,  which  may  affect 
the  risk.*^  The  representations  of  the  insured  should  be 
full,  as  well  as  true.  That  is,  every  fact  material  to  the 
risk  which  is  known  to  the  insured,  and  which  he  believes, 
or  has  reason  to  believe,  is  material  must  be  disclosed. 
A  failure  in  this  respect,  termed  in  the  law  of  insurance 
concealment,  will  be  treated  as  a  fraudulent  suppression 
of  the  truth,  and  invalidate  the  contract.  And  facts  ma- 
terial to  the  risk,  if  called  for  by  the  insurer,  must  be  dis- 
closed by  the  insured  in  his  application,  even  though  he 


40  May,  Ins.  §§  181-184;  1  Sch.  Pers.  pp.  686-688;  3  Kent,  Com. 
p.  282 ;  ct  seq. ;  Daniels  v.  Hudson  River  Fire  Ins.  Co.,  12  Cush. 
416;  Campbell  v.  N.  E.  Mut.  Life  Ins.  Co.,  98  Mass.  381;  Nicol  v. 
Am.  Ins.  Co.,  3  Wood  &  M.  (U.  S.  C),  529;  Wainwright  v.  Bland, 
2  Mad.  &  Rob.  481,  1  Mees.  &  W.  32;  Abbott  v.  Howard,  Hayes 
(Irish),  381;  Kimball  v.  /Etna  Ins.  Co.,  9  Allen,  540;  Tyler  v. 
/Etna  Ins.  Co.,  12  Wend.  507;  Protection  Ins.  Co.  v.  Harmer,  2  Ohio 
St.  452 ;  Insurance  Co.  v.  Chase,  5  Wall.  509 ;  Tesson  v.  Atlantic 
Mut  Ins.  Co..  40  Mo.  Z2,;  Mut.  Ins.  Co.  v.  Dale,  18  Md.  26;  Gates 
V.  Madison  Co.  Mut.  Ins.  Co.,  5  N.  Y.  469. 

41  May,  Ins.  §  182. 


§  128.]  SPECIAI,  PROVISIONS  OF  THE  CONTRACT.  219 

do  not  think  them  material;  and  when  expressly  made  part 
of  the  contract,  the  representations,  whether  voluntary  or 
in  response  to  questions,  become  warranties.*^ 


§  128.  Special  provisions  of  the  contract. — Modem  in- 
surance policies  contain  numerous  provisions,  and  have 
become  so  complicated  in  their  structure  that  a  full  under- 
standing and  proper  construction  of  them  often  requires 
considerable  legal  acumen,  and  careful  study.  The  prac- 
tice of  accepting  them  without  intelligent  examination,  or 
competent  legal  advice,  has  been  the  subject  of  judicial 
animadversion.  In  Woodbury  Savings  Bank  v.  Charter 
Oaks  Ins.  Co.*^  it  was  said  in  substance  by  the  court,  that 
before  executing  almost  any  other  instrument  of  equal 
perplexity,  the  parties  would  deem  it  necessary  to  take 
the  advice  of  counsel ;  that  questions  frequently  arise  as 
to  the  proper  construction  of  the  terms  used,  which  divide 
the  opinion  of  the  most  learned  jurists. 

For  a  discussion  of  the  special  provisions  of  insurance 
policies  separately,  and  in  detail,  reference  must  be  had 
to  works  specially  devoted  to  the  law  of  insurance.  Only 
the  classes,  and  the  general  rules  governing  each  class, 
can  be  noticed  in  this  connection. 

There  are  generally  two  classes  of  provisions  or  stipu- 
lations in  the  modern  policy;  one  of  which  embraces  mat- 
ters before,  and  the  other,  things  done  or  omitted  after, 
the  loss.  The  purpose  of  the  former  is  to  define  and 
determine  the  risk,  including  title,  alienation,  location, 
occupation,  use,   character,  habits,  mode  of  life  or  what- 


*2  May,  Ins.  §  200,  et  seq. ;  Lindeneau  v.  Desborough,  3  Man.  & 
Ry.  45;  Vose  v.  Life  and  Health  Ins.  Co.,  6  Cush.  42;  Miles  v.  Conn. 
Mut.  Life  Ins.  Co.,  3  Gray,  580;  Gladstone  v.  King,  1  Maule  &  S.  35,. 

*3  31  Conn.  517. 


220  SPECIAL  PROVISIONS  OF  THE  CONTRACT.  [§  128. 

ever  may  affect  the  risk;  the  office  of  the  latter  is  to  pre- 
scribe the  rights  and  duties  of  the  respective  parties  after 
a  loss,  and  the  mode  of  enforcing  the  contract.  The  first 
class,  it  will  be  seen,  affect  the  substance  of  the  contract, 
determining  its  validity,  the  liability  of  the  insurers,  and 
the  security  of  the  insured;  while  the  second  class  apply 
only  when  the  rights  and  liabilities  of  the  respective  par- 
ties have  become  fixed  by  the  terms  of  the  contract,  and 
relate  to  the  formalities  prescribed  for  observance  by  the 
insured  in  enforcing  his  claim  for  indemnity.  By  reason 
of  their  superior  importance,  the  rule  has  become  estab- 
lished that  the  first  class  of  stipulations  will  be  more 
strictly  construed  than  those  of  the  second  class.  The 
latter,  however,  must  be  substantially  compHed  with.** 

There  are  two  provisions  which  it  may  be  well  to  notice 
specially  in  passing;  the  one  concerning  limitation  of  an 
action  on  the  policy;  and  the  other  in  reference  to  arbitra- 
tion. It  is  quite  common  for  the  parties  to  a  contract  of 
insurance  to  create  for  themselves  and  the  contract  a  limi- 
tation unknown  to  statute,  by  inserting  a  provision  in 
the  policy  that  no  action  upon  it  on  a  claim  for  indemnity 
shall  be  maintained,  unless  it  be  commenced  within  a  speci- 
fied time  after  the  loss,  or  after  notice  of  the  loss.  Such  a 
provision    is    held    to    be    valid,    binding    the    insured." 


**  May,  Ins.  §  216,  ef  seq. ;  Northwestern  Ins.  Co.  v.  Atkins,  3  Bush 
(Ky.),  328;  Walsh  v.  Washington,  etc.,  Ins.  Co.,  32  N.  Y.  427: 
Sexton  V.  Montgomery  Ins.  Co.,  9  Barb  191 ;  Lycoming,  etc.,  Ins.  Co. 
V.  Updegraff,  40  Pa.  St.  311. 

*5  May,  Ins.  §  478 ;  Amesbury  v.  Bowditch  Mut.  Fire  Ins.  Co.,  6 
Gray,  596;  Brown  v.  Roger  Williams  Ins.  Co.,  7  R.  I  301,  5  R.  I. 
304;  Peoria  Ins.  Co.  v.  Whitehill,  25  111.  466;  North  Western  Ins. 
Co.  V.  Phoenix  Oil  and  Candle  Co.,  1  Pa.  St.  449;  Wilson  v.  ^tna 
Ins.  Co.,  27  Vt.  99;  Bruse,  et  ux.  v.  Savannah  Mut.  Ins.  Co.,  24 
Ga.  97 ;   Portage  County  Mut.  Ins.  Co.  v.  West,  6  Ohio,  599 ;   Car- 


§  128.]  SPECIAL  PROVISIONS  OF  THE  CONTRACT.  221 

Coupled  with  this  provision  is  the  further  one,  that  the 
lapse  of  the  prescribed  period  of  limitation  without  com- 
mencing an  action,  shall  be  conclusive  evidence  against  the 
plaintiff's  claim  in  an  action  for  its  enforcement  subse- 
quently commenced.  These  stipulations  combined  not 
only  create  for  the  parties  and  contract  a  special  limita- 
tion, but  also  establish  for  the  parties  and  the  court,  a  new 
and  special  rule  of  evidence  for  an  action  on  the  policy. 
Both  of  these  provisions  are  held  to  be  valid.*^  The  other 
provision  to  which  attention  is  directed  is,  that  in  case  of 
loss,  and  of  disagreement  upon  the  terms  of  adjustment, 
all  matters  in  dispute  shall  be  submitted  to  arbitration. 
But  it  is  generally  held  by  the  courts  that  this  provision 
has  no  binding  force.  The  parties  may  voluntarily  arbi- 
trate their  differences,  and  this  course  will  be  approved  by 
the  courts ;  but  they  cannot,  by  an  agreement  between 
themselves  in  advance,  deprive  the  courts  of  their  juris- 
diction conferred  by  law.  The  parties  are  not  above  the 
law,  or  in  all  respects  a  law  unto  themselves.  Moreover, 
as  the  courts  have  power  to  compel  specific  performance 
of  contracts,  if  the  provision  in  question  were  held  valid, 
they  might  be  called  upon  to  enforce  it,  thus  obtaining  judi- 
cial cognizance  of  a  matter  as  to  which  the  stipulation  of 
parties  had  denied  them  jurisdiction.  This  result,  it  is 
said  in  Hill  v.  Hollister,'^''  would  place  the  parties  in  "the 


ter  V.  Humboldt  Fire  Ins.  Co.,  12  Iowa,  287 ;  Riddlesbarger  v.  Hart- 
ford Ins.  Co.,  7  Wall.  386. 

*^  Citations  last  supra,  and  Cray  v.  Hartford  Ins.  Co.,  1  Blatchf. 
280;  Riddlesberger  v.  Hartford  Ins.  Co.,  6  Wall.  386;  Fullam  v. 
New  York,  etc.,  Ins.  Co.,  7  Gray,  61 ;  Schroeder  v.  Insurance  Co., 
2  Phil.  Pa.  286. 

*n  Wilson,  129.  And  see  May,  Ins.  §  492;  Scott  v.  Avery,  2 
Eng.  L.  &  Eq.  327,  5  H.  L.  C.  311 ;  Scott  v.  The  Phoenix  Ass'n  Co., 
1    Stuart    (Lower  Canada),   152;   Robinson  v.  Georges   Ins.   Co.,   17 


222  MUTUAL    INSURANCE.  [§  129. 

ludicrous  attitude  of  coming  into  court  for  the  purpose  of 
compelling  each  other  to  keep  out." 

But,  while  the  courts  cannot,  by  a  stipulation  in  the 
policy,  be  deprived  of  jurisdiction,  or  the  insured  of  an 
action  at  law  to  determine  his  right  of  recovery,  or  other 
subordinate  particulars,  not  affecting  the  merits  of  the 
claim  for  indemnification,  will  bind  the  parties,  and  be 
enforced  by  the  courts.** 

§  129.  Mutual  insurance. — It  has  been  already  stated*^ 
that  mutual  insurance  differs  in  some  respects  from  other 
kinds  of  insurance.  The  leading  peculiarity  of  mutual  in- 
surance is,  that  each  person  insured  becomes  a  member  of 
the  company  insuring,  participates  in  the  management, 
shares  in  the  profits  and  losses  of  the  business,  is  clothed 
with  the  rights,  and  subject  to  the  liabilities,  of  a  stock- 
holder. "He  is  at  once  insurer  and  insured."  The  ac- 
ceptance of  a  policy  by  a  party  makes  him  a  member  of 
the  company,  and  he  thereby  becomes  bound  by  its  rules 
which  he  is  presumed  to  know.^°     But  neither  a  by-law. 


Me.  131;  Commercial  Union  Ins.  Co.  v.  Hocking,  115  Pa.  St.  407; 
Crossley  v.  Conn.  Fire  Ins.  Co.,  27  Fed.  Rep.  30. 

*8  May,  Ins.  §  493 ;  Braunstein  v.  Accidental  Death  Ass'n  Co., 
1  Best  &  Smith,  72;  Tredwen  v.  Holman,  1  Hurl.  &  C.  72;  Lowndes 
V.  Stamford,  18  Q.  B.  425;  Trott  v.  City  Ins.  Co.,  1  Cliff.  (U.  S. 
C.  Ct.)  438;  Soars  v.  Home  Ins.  Co.,  140  Mass.  343. 

4»§  122  supra. 

50  May,  Ins.  §§  548,  552;  1  Sch.  Pers.  Prop.  pp.  678,  679;  Bouv. 
L.  Diet.  "Insurance  Company;"  Mygatt  v.  N.  Y.  Prot.  Ins.  Co., 
21  N.  Y.  52;  Ohio  Mut.  Ins.  Co.  v.  Marietta  Woolen  Factory,  3  Ohio 
St.  N.  S.  348;  Union  Ins.  Co.  v.  Hoge,  How.  (U.  S.),  35;  White  v. 
Havens,  2  How.  Pr.  Rep.  177;  Mitchell  v.  Lycoming  Ins.  Co.,  51  Pa. 
St.  402;  Coles  v.  Iowa  State  Mut.  Ins.  Co.,  18  Iowa,  426;  Diehl  v. 
Adams  Co.  Mut.  Ins.  Co.,  58  Pa.  St.  443 ;  Sands  v.  Hill,  42  Barb.  65 ; 
Traders'  Mut.   Ins.   Co.  v.   Stone,  9  Allen    (Mass.),  483;    Currie  v. 


§  129.]  MUTUAI.   INSURANCE.  223 

nor  any  other  act  of  the  company,  affecting  his  contract  or 
relation  to  the  company,  passed  or  done  without  his  con- 
sent, will  bind  him.^^ 

There  are  noticeable  differences  between  a  joint  stock, 
and  a  mutual,  insurance  company  in  respect  to  capital. 
In  the  former,  the  capital  is  limited  in  the  act  of  incorpor- 
ation; while  in  the  latter,  it  is  ordinarily  tmlimited,  de- 
pending upon  the  amount  earned  by  the  company  and 
invested  for  the  purposes  of  its  business.  The  former, 
like  other  joint  stock  companies  with  a  cash  capital,  issues 
transferable  shares  representing  the  capital;  while  in  the 
latter,  the  capital  is  made  up  by  what  are  termed  "deposit 
notes,"  by  premiums  paid  on  insurance,  and  by  the  busi- 
ness earnings  of  the  company.^^  In  addition  to  the  de- 
posit notes  given  to  make  up  the  capital  stock  of  the  com- 
pany, and  assessable  to  pay  losses,  notes  are  sometimes 
given  to  the  company  in  advance  for  premiums,  usually 
called  "stock  notes,"  made  payable  in  terms  by  insurance 
from  time  to  time,  as  the  makers  require.  The  former 
class  are  subscription  notes  to  the  capital  stock  of  the 
company,  are  held  for  the  security  of  dealers,  are  negotia- 
ble, or  collectible  for  the  payent  of  losses  or  debts,  and 
valid  obligations  to  the  full  amount  thereof,  whether  any 
premiums  have  been  actually  earned  or  not,  while  in  the 
latter  class  the  makers  are  only   liable   for  the  pro   rata 


Mut.  Ass'n  Soc,  4  H.  &  M.  (a),  315;  Fell  v.  McHenry,  42  Pa.  St. 
41 ;  New  England  Mut.  Fire  Ins.  Co.  v.  Belknap,  9  Cush.  140. 

^1  New  England  Mutual  Fire  Ins.  Co.  v.  Butler,  34  Me.  351 ; 
Hamilton  Mut.  Ins.  Co.  v.  Hobart,  2  Gray,  543 ;  Insurance  Co.  v. 
Connor,  17  Pa.  St.  136;  Great  Falls  Mutual  Fire  Ins.  Co.  v.  Plarvey, 
45  N.  H.  292. 

S2  1  Sch.  Pers.  Prop.  p.  678 ;  May,  Ins.  §  549 ;  Fland.  Fire  Ins. 
18,  19;  Cumberland  Valley  Mut.  Prot.  Co.  v.  Schell,  29  Pa.  St.  31; 
Sun  Mut.  Ins.  Co.  v.  Mayor,  8  Barb.  450;  Corn  v.  Mut.  Assurance 
Co.,  6  Crabbe,  192. 


224  MUTUAI,    INSURANCE.  [§  129. 

share  of  such  losses  as  may  occur  upon  risks  thereafter 
assumed,  in  common  with  all  other  premium  notes  held  by 
the  company.  The  former,  being  payable  absolutely,  are 
subject  to  the  Statute  of  Limitations,  while  the  latter,  being 
payable  on  a  contingency  that  may  never  happen,  are  not, 
as  a  whole,  subject  to  the  statute,  but  only  such  portion  of 
them  as  may  be  called  for,  and  from  the  time  of  the  call.^^ 


^^  May,  Ins.  §  549 ;  1  Sch.  Pers.  Prop.  p.  680 ;  Dana  v.  Munro, 
38  Barb.  528 ;  Ewell  v.  Crocker,  4  Bosw.  22 ;  Bell  v.  Shilley,  33  Barb. 
610;  Mclntyre  v.  Preston,  5  Gilm.  (111.),  48;  White  v.  Haight, 
16  N.  Y.  310;  Tuckerman  v.  Brown,  33  N.  Y.  297. 


§  130.]  LEGACIES,   DEFINITION,    AND    CI.ASSES.  225 

CHAPTER  XII. 

LEGACIES   AND   DISTRIBUTIVE   SHARES. 

LEGACIES. 

§  130.     Definition,  and  principal  classes. 

131.  Minor  divisions,   rules  and  incidents. 

132.  Abatement,   ademption,   payment  and   satisfaction. 

DISTRIBUTIVE    SHARES. 

133.  Defined  and  explained. 

Legacies  and  distributive  shares,  being  species  of  incor- 
poreal personal  property,  are  legitimate  subjects  of  notice 
in  this  treatise. 

I.     Legacies. 

§  130.  Definition  and  principal  classes. — A  legacy  is  a 
testamentary  gift  of  personal  property.  The  word  "be- 
quest" has  the  same  significance ;  and  its  verb  "bequeath'* 
is  generally  used  in  wills,  the  substantive  "lagacy"  having 
no  corresponding  verb.^ 

Legacies  naturally  range  in  three  general  classes,^ 
namely,  general,  demonstrative,  and  specific. 

1.  General. — A  general  legacy  is  one  which  simply  gives 
a  sum  of  money,  or  other  property,  without  further  de- 
scription, and  consequently  without  limiting  the  subject 
of  the  gift  to  any  particular  portion  of  the  estate,  in  ex- 
clusion of  other  portions  of  the  same  kind. 

2.  Demonstrative. — A  legacy  of  this  class  is  briefly  de- 
fined, a  gift  of  a  general  legacy  to  be  drawn  from  a  specific 


^  Sch.    Pers.    Prop.    p.   328 ;    Bouv.    L.    Diet.    "Legacy ;"    O'Hara's 
Wig.  Wills,  p.  330,  et  seq. ;  And.  L.  Diet.  "Legacy." 
15 


226  LEGACIES,    DEFINITION,    AND    CLASSES.  [§  130. 

fund.  If  the  fund  fails,  the  legacy  becomes  a  charge  upon 
the  general  assets. 

3.  Specific. — A  specific  legacy  is  the  gift  of  a  thing  in 
specie,  and  not  of  its  value.  In  other  words,  it  is  a  bequest 
of  a  specified  part  of  a  testator's  personal  estate,  distin- 
guished from  all  others  of  the  same  kind.^ 

Between  general  and  specific  legacies  there  is  this  im- 
portant difference :  In  the  latter,  if  the  testator  do  not 
leave  the  specific  thing  bequeathed  the  gift  fails  altogether, 
the  legatee  having  no  claim  on  the  estate  at  large  in  virtue 
of  the  legacy.  But  if  the  specific  thing  be  found  among 
the  assets,  the  legatee  will  be  entitled  to  it  without  diminu- 
tion, or  contribution  by  reason  of  a  deficiency  in  the  estate 
to  pay  all  the  legacies  in  full.^  A  general  legacy  on  the 
other  hand,  is  a  charge  upon  the  whole  personal  estate, 
and  must  be  paid  in  full  if  the  assets  be  sufficient  to  satisfy 
debts  and  legacies  in  full ;  but  in  case  the  personalty  be  in- 
sufficient for  such  purpose,  the  general  legacy  will  abate 
or  be  subject  to  contribution.* 

Demonstrative  legacies  partake,  in  certain  respects,  of 
the  nature  both  of  general,  and  specific  legacies ;  of  the 
former,  in  that  if  the  fund  from  which  the  legacy  is  to  be 
paid  for  any  reason  fails,  the  legatee  will  not  lose  his  be- 


2  0Hara's  Wig.  Wills,  p.  330;  Underbill,  Wills,  pp.  557,  565; 
1  Sch.  Pers.  Prop.  p.  730;  Will.  Exrs.  p.  340;  2  Maed.  Ch.  Pr. 
pp.  7,  8 ;  Coleman  v.  Coleman,  2  Ves.  Jr.  p.  160 ;  Tifft  v.  Porter, 
8  N.  Y.  518;  Ludlam's  Estate,  1  Harris,  188;  Walls  v.  Stewart,  4 
Harris,  281 ;  Malone  v.  Mooring,  40  Miss.  247 ;  Millens  v.  Smith, 
1  Drew  &  S.  (Ireland,  Ch.),  204;  Gilmer  v.  Gilmer,  42  Ala.  9. 

3  1  Sch.  Pers.  Prop.  pp.  730,  731;  Will.  Exrs.  p.  350;  2  Williams' 
Exrs.,  1706,  et  scq.,  Underbill,  Wills,  p.  554;  Fountain  v.  Tyler,  9 
Price,  94,  104 ;  Purse  v.  Snaplin,  1  Atk.  414 ;  Morris  v.  Tbomson, 
McCart.  (N.  J.),  Ch.  493;  Foote,  Appellant,  22  Pick.  299;  Stephenson 
V.  Dowson,  3  Beav.  342. 

■*  Citations  last  supra. 


§  131.]  MINOR   DIVISIONS,    RULES,    ETC.  227 

quest,  but  may  receive  it  from  the  general  assets;  of  the 
latter,  in  the  particular  that  the  legacy  is  not  liable  to 
abatement  upon  a  deficiency  of  assets  to  pay  all  the  leg- 
acies.^ 

It  should  be  observed  in  passing  that  the  courts  are 
disinclined  to  construe  legacies  as  specific,  unless  com- 
pelled so  to  do  by  the  clearly  expressed  intention  of  the 
testator,  for  the  reason  that  specific  legacies  are  regarded 
as  "less  consonant  to  reason  and  justice,"  and  more  liable 
to  render  a  provision  of  the  testator  ineffective,  than  gen- 
eral legacies.^ 

§  131.  Minor  divisions,  rules  and  incidents. — In  addi- 
tion to  the  principal  classes  of  legacies  now  briefly  noticed, 
there  are  several  minor  divisions,  with  rules  and  incidents 
that  require  attention. 

1.  Cumulative  legacies. — When  the  same,  or  a  different, 
amount  of  money,  or  other  things,  estimated  by  quantity, 
is  given  to  the  same  person  more  than  once  by  will  or 
codicil,  the  question  arises  whether  the  several  bequests 
are  to  be  construed  as  cumulative,  or  merely  repetitions, 
giving  the  beneficiary  but  one  legacy.  The  rule  of  con- 
struction governing  such  cases  seems  to  be  well  established, 
that  where  the  legacies  are  of  the  same  amount,  and  in  the 


sSch.  Pers.  Prop.  p.  732;  O'Hara's  Wig.  Wills,  p.  331;  Underbill, 
Wills,  pp.  555,  556;  Will.  Exrs.,  p.  357;  Creed  v.  Creed,  11  Clark  &  F. 
508;  Coleman  v.  Coleman,  2  Ves.  Jr.  640;  2  Wms.  Exrs.  (6th  Eng. 
Ed.),  1078. 

«  O'Hara's  Wig.  Wills,  pp.  333,  334 ;  Will.  Exrs.  p.  349 ;  Sibley  v. 
Perry,  7  Ves.  530 ;  Smitb  v.  Lampton,  8  Dana,  69 ;  Briggs  v.  Hos- 
ford,  22  Pick.  288,  289;  Cbawortb  v.  Beecb,  4  Ves.  555;  Mayrount 
V.  Davis,  1  Desaus.  202;  Cutbbert  v.  Cutbbert,  3  Yeates,  486;  Ellis. 
V.  Walker,  Ambler,  310;  Walton  v.  Walton,  7  Jobns.  Ch.  R.  264; 
TifTt  V.  Porter,  8  N.  Y.  518;   Enders  v.  Enders,  2  Barb.  362,  367.. 


228  MINOR  DIVISIONS,  RULES,  ETC.  [§131. 

same  instrument,  it  will  be  presumed  that  they  are  repeti- 
tions of  the  same  gift,  and  will  be  so  adjudged,  unless  a 
different  intent  is  shown  by  the  language  of  the  instru- 
ment, and  the  surrounding  circumstances.  But  where  the 
legacies  are  not  in  the  same  instrument,  or  of  the  same 
amount,  the  presumption  is  that  they  are  cumulative,  and 
the  legatee  will  take  both,  unless  it  be  clearly  shown  that 
the  testator  intended  but  one  gift.^ 

2.  Residuary  legacy. — A  residuary  bequest  carries  to 
the  legatee  all  the  personal  property  of  the  testator  which 
he  did  not  attempt  to  otherwise  dispose  of  by  his  will,  and 
also  every  thing  that  he  did  attempt  to  otherwise  dispose 
of,  but  ineffectually,  as  void  and  lapsed  legacies.  This 
effect  results  from  a  presumption  in  favor  of  the  residuary 
legatee,  and  a  decided  disinclination  of  the  courts  to  adopt 
a  construction  of  wills  which  would  result  in  partial  in- 
testacy.* 

3.  Vested,  and  contingent,  legacies. — A  vested  legacy 
is  one  that  takes  effect,  or  becomes  vested,  on  the  death 
of  the  testator;  at  testator's  decease  it  becomes  "a  certain 
interest  in  a  certain  person."  A  contingent  legacy  on 
the  other  hand,  is  one  the  vesting  of  which  depends  upon 


7  Underhill,  Wills,  pp.  568,  571 ;  O'Hara's  Wig.  Wills,  pp.  350-352^; 

1  Sch.  Pers.  Prop.  p.  733 ;  Will.  Exrs.  pp.  362,  363 ;  Suisse  v.  Lowther, 

2  Hare,  424,  432,  433;  Holford  v.  Wood,  4  Ves.  76;  Manning  v. 
Thessiger,  3  Mylne  &  K.  29 ;  Ridges  v.  Morrison,  1  Br.  Cr.  Cas.  389 ; 
Yockney  v.  Hansard,  3  Hare,  620,  622;  Lobley  v.  Stocks,  19  Beav.  392: 
De  Witt  V.  Yates,  10  Johns.  156;  Jones  v.  Creveling,  Harr.  N.  J.  127; 
Masters  v.  Masters,  1  P.  Wms.  424. 

8  1  Sch.  Pers.  Prop.  p.  732;  O'Hara's  Wig.  Wills,  pp.  349,  350; 
Attorney  General  v.  Johnstone,  Amb.  577;  Cowling  v.  Cowling,  26 
Beav.  449;  King  v.  Strong,  9  Paige,  105;  Peay  v.  Barber,  1  Hill  Ch. 
(S.  C),  95;  Cambridge  v.  Roas,  8  Vesey,  12,  15;  Leake  v.  Robinson, 
2  Mer.  363,  393;  Reynolds  v.  Kortright,  Beav.  417,  427. 


§  131.]  MINOR  DIVISIONS,  RULES,  ETC.  229 

some  uncertain  person  or  event.®  If  there  be  nothing  in 
the  will  clearly  indicating  a  contrary  intention,  the  legacy 
will  take  effect  at  testator's  decease,  the  presumption 
being  in  favor  of  a  vested,  rather  than  a  contingent,  leg- 
acy; and,  in  case  of  ambiguity,  the  courts  in  construing 
the  will  incline  to  a  vested,  in  preference  to  a  contingent 
interest.^" 

It  must  be  understood,  however,  that  the  mere  fact 
that  the  legatee  does  not  become  entitled  to  the  immediate 
possession  and  enjoyment  of  the  legacy  at  the  death  of  the 
testator,  or  at  the  time  when  legacies  are  payable  by  law, 
necessarily  makes  it  contingent,  for  two  estates  or  interests 
may  vest  at  testator's  death,  the  one  in  possession  and  the 
other  in  expectancy.  The  enjoyment  of  the  gift  by  the 
legatee  may  be  postponed  for  a  limited  period  after  tes- 
tator's death,  and  yet  be  a  vested  legacy.  The  interest 
may  vest  in  right,  although  not  in  immediate  possession. ^^ 

4.  Absolute,  and  conditional  legacies. — These  are  nearly 
allied  to,  and  in  some  respects  the  same  as,  vested  and  con- 
tingent legacies.  An  absolute  legacy  is  an  unqualified 
testamentary  gift.  A  conditional  legacy  is  a  bequest 
depending  upon  the  occurrence  or  non-concurrence  of  an 


9  O'Hara's  Wig.  Wills,  pp.  261-265 ;  1  Sch.  Pers.  Prop.  pp.  737-738 ; 
Will.  Exrs.  p.  358;  Redf.  Surr.  p.  322. 

^°  Citations  last  supra,  and  see  Guyther  v.  Taylor;  3  Ired.  (N.  C), 
Eq.  328;  Eldridge  v.  Eldridge,  6  Cush.  516;  Devane  v.  Larkins, 
3  Jones  (N.  C),  Eq.  377;  Gill  v.  Weaver,  1  Dev.  &  B.  (N.  C), 
Eq.  41 ;  Burd  v.  Burd,  4  Pa.  St.  182 ;  Gilford  v.  Thorne,  9  N.  J.  Eq. 
(1  Stock.),  702;  Van  Vechten  v.  Van  Vechten,  8  Paige,  104; 
Dominick  v.  Moore,  2  Bradf .  Surr.  201 ;  Newport  v.  Cook,  Id.  332. 

11  O'Hara's  Wig.  Wills,  p.  261;  1  Sch.  Pers.  Prop.  pp.  739,  740; 
Dayt.  Surr.  p.  387,  et  seq. 


230  MINOR  DIVISIONS,  RULES,  ETC.  [§  131. 

uncertain  event,  by  which  the  legacy  will  vest,  or  be  de- 
feated.12 

There  are  two  kinds  of  conditions,  precedent  and  subse- 
quent. The  former  are  those  in  which  the  vesting  of  the 
legacy  is  postponed  to,  and  made  conditional  upon,  the 
happening  of  some  given  event,  or  the  arrival  of  some 
specified  time.  The  latter  is  a  legacy  which,  though  vested, 
may  be  defeated  by  the  happening  or  not  happening  of 
some  future  event.^^ 

5.  Lapsed  legacies. — Lapse  is  the  failure  of  a  testamen- 
tary gift,  generally  caused  by  the  death  of  the  donee  prior 
to  that  of  the  testator.  But  a  legacy  may  lapse  after  the 
death  of  the  testator,  by  reason  of  a  contingency,  upon 
which  the  vesting  is  conditioned,  so  that  a  general  legacy 
which  never  vests  is  deemed  a  lapsed  legacy,  whether  the 
lapse  occurs  before  or  after  the  testator's  death.^* 

Where  the  legacy  is  to  several  persons  jointly,  a  lapse 
will  not  occur  unless  all  the  donees  die  prior  to  the  death 
of  the  testator;  but  it  is  otherwise  if  the  legatees  take  as 
tenants  in  common.^^  And  a  bequest  to  a  class,  as  to  the 
children  of  A,  whether  he  be  alive  or  dead,  will  not  lapse 
so  long  as  any  one  of  the  class  survives.^® 

12  Will.  Exrs.  p.  358,  et  seq.;  1  Sch.  Pers.  Prop.  p.  738;  1  Rop. 
Leg.  645 ;  Underbill,  Wills,  pp.  637,  641. 

13  Citations  last  supra. 

"  O'Hara's  Wig.  Wills,  p.  416 ;  Underbill,  Wills,  p.  358,  et  seq. ; 
1  Scb.  Pers.  Prop.  p.  735 ;  Dayt.  Surr.  pp.  338-391 ;  2  Wms.  Exrs. 
1084 ;  Fisk  v.  Tbe  Attorney  General,  Law  Rept.  4  Eq.  521 ;  In  re 
Lewes'  Trusts,  Law  Rep.  1 1  Eq.  236 ;  Elliott  v.  Davenport,  1  P.  Wms. 
83;  Corbyn  v.  Frencb,  4  Ves.  418;  Wentwortb's  Exrs.  2  Pbill.  261. 

15  Citations  last  supra.  And  see  Buffar  v.  Bradford,  2  Atk.  220 ; 
Paye  v.  Paye,  2  P.  Wms.  489 ;  Gardner  v.  Printup,  2  Barb,  83,  89 ; 
Man  V.  Man,  2  Str.  905 ;  Bagwell  v.  Dry,  1  P.  Wms.  700 ;  2  Id.  400. 

18  Underbill,  Wills,  Cbap.  XV;   Shuttlewortb  v.  Greaves,  4  Mylne 


§  132.]  ABATEMENT,    ADEMPTION,    ETC.  231 

The  lapsed  legacy  will  either  fall  into  the  residium,  or 
be  undisposed  of  by  the  will  and  subject  to  the  law  of  dis- 
tributions. The  first  alternative  will  be  preferred  in  con- 
struing the  will,  partial  intestacy  not  being  favored  by  the 
courts.^^ 

It  should  be  noticed  that  there  is  an  important  distinc- 
tion between  personal,  and  real,  estate  in  regard  to  the 
devolution  of  void  and  lapsed  legacies.  The  former,  it  is 
generally  held,  fall  into  the  residium,  while  the  latter  de- 
scend to  the  heirs. ^^ 

§  132.  Abatement,  ademption,  payment  and  satisfac- 
tion. 

1.     Abatement. 

We  have  seen  that  one  of  the  limitations  to  the  absolute 
ownership  of  the  property,  or,  in  other  words,  absolute  prop- 
erty in  things,  is  the  liability  of  one's  property  to  appro- 
priation in  satisfaction  of  his  just  debts. ^^  The  applica- 
tion of  this  principle  to  legacies  involves  their  partial  or 
total  abatement  when  the  assets  are  insufficient  to  pay  all 
the  debts.  The  order  of  abatement  is,  first,  general  lega- 
cies; second,  if  there  still  be  a  deficiency,  the  demonstrative 
and  specific  legacies.  Demonstrative  legatees  must  first 
look  to  the  demonstrative  fund  for  payment,  but  if  this 


&  C.   35;   Doe  d.    Stewart  v.   Sheffield,   13   East,   526;   Anderson   v. 
Parsons,  Greenl.  486;  Sparhawk  v.  Buell,  9  Vt.  41 ;  Hocker  v.  Gentry, 

3  Mete.    (Ky.),  463;   Knight  v.  Wall,  Dev.  &  B.    (N.   C.)    L.  125; 
Stires  v.   Van   Rensselaer,  2   Bradf.    Surr.    172;    Carver   v.   Oakley, 

4  Jones  (N.  C),  Eq.  85;  Hawkins  v.  Everett,  5  Id.  45. 

1'^  Dayt.  Surr.  pp.  439,  440;  supra,  §  131,  sub.  2,  and  cases  cited. 

18  Cox  V.  Harris,  17  Md.  23,  31;  Brown  v.  Higgs,  4  Ves.  708, 
n.  b. ;  Tongue  v.  Nutwell,  13  Md.  415 ;  Faust's  Adm'rx  v.  Birner, 
30  Mo.  414. 

19  Supra,  §  5,  sub.  5. 


232  ABATEMENT,    ADEMPTION,    ETC.  [§  132. 

fund  prove  insufficient  for  the  purpose,  the  deficiency,  in 
common  with  general  legacies,  will  be  a  charge  upon  the 
general  fund.  A  "demonstrative  legacy,"  it  is  said,  "has 
the  priority  of  right  to  the  fund  out  of  which  it  is  directed 
to  be  paid,  as  against  all  other  claims  except  those  of  cred- 
itors."^*' A  specific  legacy  is  only  liable  to  abatement  in 
case  of  a  deficiency  of  assets  to  pay  all  the  debts,  after 
abatement  in  full  of  general  and  demonstrative  legacies.^^ 
As  already  shown,  it  is  not  liable  to  contribution  to- 
wards a  deficiency  of  assets  to  pay  all  the  legacies  in  full.** 

2.  Ademption. 
Used  in  this  connection,  ademption  means  the  revocation 
or  taking  away  of  a  legacy.  Specific  legacies  are  adeemed 
when  the  subject  of  the  gift  is  wholly  lost,  destroyed,  or 
disposed  of  by  the  testator  during  his  life,  or  when  its 
form  is  so  changed  as  not  to  remain  in  specie.*^  An  ex- 
ception to  this  rule  is  found  in  cases  where  the  change  in 
the  subject  of  the  bequest  is  effected  by  operation  of  law, 
instead  of  the  act  of  the  testator,  or  through  other  agency." 

20  Underbill,  Wills,  p.  535;  Will.  Exrs.  p.  382;  O'Hara's  Wig. 
Wills,  p.  353.  et  seq.;  Sellon  v.  Watts.  7  Jur.  N.  S.  134;  9  Weekly 
Repr.  847. 

21  Will.  Exrs.  p.  382;  Redf.  Surr.  p.  331. 
-"^  Supra,  §   130. 

23  Underbill,  Wills,  pp.  556,  et  seq. ;  1  Sch.  Pers.  Prop.  740,  741 ; 
O'Hara's  Wig.  Wills,  p.  361;  Will.  Exrs.  p.  351;  Ashburner  v. 
McGuire,  Br.  C.  C.  108;  Durant  v.  Friend,  5  DeGex  &  Sm.  343; 
Ford  V.  Ford,  3  Foster  (N.  H.),  212;  Walton  v.  Walton,  7  Johns. 
Ch.  258,  262 ;  McKinnon  v.  Tbompson.  3  Jobns.  Ch.  307 ;  Badrick 
V.  Stevens,  3  Br.  C.  C.  431;  Rider  v.  Wager,  2  P.  Wms.  329.  330; 
Donahue  v.  Lea,  1  Swan  (Tenn.),  119;  Havens  v.  Havens,  1  Sandf. 
Ch.  324;  Smith  v.  Jones,  4  Ohio,  115. 

2*  Partridge  v.  Partridge,  Cas.  1  Talb.  226 ;  Shaf tsbury  v.  Shafts- 
bury,  2  Vem.  747 ;  Dingwell  v.  Askew,  1  Cox,  427 ;  Richards  v. 
Humphreys,  15  Pick.  133,   135. 


§  132.]  ABATEMENT,    ADEMPTION,   ETC.  233 

The  question  of  ademption  of  general  legacies  is  ordi- 
narily connected  with  advancements  and  portions.  While 
the  intention  of  the  testator  must  govern,  courts  of  equity 
incline  to  treat  advancements  to  a  child  by  a  father,  or 
one  in  loco  parentis,  as  an  ademption  of  a  general  legacy 
theretofore  given  by  his  will,  to  the  extent  of  the  amount 
advanced.^^  In  cases  of  doubtful  intention,  the  courts 
have  received  parol  evidence,  not  for  the  purpose  of  di- 
rectly affecting  the  will,  or  of  varying  or  contradicting 
the  written  instrument,  but  to  establish  independent  facts 
which  may  aid  the  court  in  discovering  the  testator's  in- 
tention.-" 

3.     Payment  and  satisfaction. 

We  have  seen  that  a  will  speaks  from  the  time  of  testa- 
tor's death. '■^  And  it  has  been  shown  that  if  there  be 
nothing  in  the  will,  or  extrinsic  evidence,  indicating  a  con- 
trar>'  intention  of  the  testator,  a  legacy  will  take  effect,  or 
become  vested,  at  his  decease."^  It  follows  that  the  title, 
or  right,  to  such  a  legacy  passes  to  the  legatee  on  the  death 
of  the  testator,  subject  to  the  payment  of  his  debts,  but  the 
assent  of  the  executor  is  requisite  to  perfect  the  donee's 
title.^'^     The  executor  is  regarded  in  equity  as  a  trustee. 


23  1  Sch.  Pers.  Prop.  pp.  741,  742;  Underbill,  Wills,  pp.  598.  ct  scq.; 
In  re  Pye,  ex  parte,  18  Ves.  140,  153 ;  Hopwood  v.  Hopwood,  7  H.  L. 
Cas.  728 ;  Warel  v.  Lant,  Prec.  Ch.  182 ;  Jenkins  v.  Powell.  2  Vern. 
115;  Scotton  v.  Scotton,  1  Str.  235;  Carver  v.  Bowles,  2  Russ.  &  My. 
301 ;    Montague   v.    Montague,    IS    Beav.    565. 

26  Underbill,  Wills,  p.  599;  1  Scb.  Pers.  Prop.  p.  742;  Kirk  v. 
Edows,  3  Hare,  509 ;  Clark  v.  Jetton,  5  Sneed,  229 ;  Paine  v.  Parsons, 
14  Pick.  318;  Sowoper's  Appeal,  27  Pa.  St.  58;  Wallace  v.  Pomfret, 
11  Ves.  542;  Hall  v.  Hill,  1  Dru.  &  War.  94,  111-133. 

27  Supra,  §  95,  with  citations. 

^^  Supra,  §  131,  sub.  3,  witb  citations. 

29  Underbill,  Wills,  pp.  574,  ct  scq. ;  1  Scb.  Pers.  Prop.  744 ;  Redf . 
Sum  p.  318;  Will.  Exrs.  pp.  379,  380. 


234  ABATEMENT,  ADEMPTION,  ETC.  [§  132. 

having  a  right  to  hold  the  legacy  until  after  the  payment 
of  the  debts,^°  but  if  he  unreasonably  withholds  his  assent, 
a  court  of  equity  will  compel  him  to  yield  it.^^ 

The  rule  is  quite  general  that  an  executor  may  have  one 
year  in  which  to  ascertain  the  condition  of  the  estate,  na- 
ture and  extent  of  assets,  and  the  claims  of  creditors,  be- 
fore being  compelled  to  pay  legacies.  He  may,  however, 
pay  or  deliver  the  legacy  prior  to  the  expiration  of  the 
year,  or  other  limited  period,  but  he  will  do  so  at  his  peril 
should  the  assets  prove  insufficient  to  pay  all  the  debts.^- 

As  a  general  rule,  a  legacy  by  a  debtor  to  his  creditor 
which  is  of  equal  or  greater  amount  than  the  debt,  and 
of  the  same  character,  and  payable  after  the  debt  becomes 
due,  will  be  considered  as  a  satisfaction  of  it.  But  any 
circumstances  tending  to  rebut  the  presumption  that  such 
effect  was  intended  by  the  testator,  will  be  available  to 
prevent  the  application  of  the  rule.^^ 

Whether  a  legacy  by  a  creditor  to  his  debtor  shall  be 
regarded  as  a  release  or  discharge  of  the  debt,  will  depend 
upon  the  intention  of  the  testator;  and  his  intention  must 
be  determined  by  the  structure  and  language  of  the  will, 
under  settled  rules  of  construction,  aided  in  doubtful  cases 
by  parol  proof  of  circumstances  whereon  to  found  infer- 
ences and  presumptions.^* 


3"  Citations  last  supra. 

31  Citations  supra;  and  2  Wins.  Exrs.  p.  1238. 

32  Underbill,   Wills,   pp.   575.  576;    O'Hara's  Wig.    Wills,  p.  343; 

1  Sch.   Pers.    Prop.  pp.   744-746;    Will.   Exrs.  pp.  Z77-Z79;    1   Rop. 
Leg.  pp.  456,  457 ;  1  Sch.  Pers.  Prop.  pp.  472,  473 ;  Coppin  v.  Coppin, 

2  P.  Wms.  291,  296;   Keyling's  Case,  1   Eq.  Cas.  Abr.  239,  pi.  25; 
Orr  V.  Kaines,  2  Ves.  Sen.  193. 

33  Underbill,  Wills,  p.  443;  1  Id.  pp.  539,  540,  n.  6;  Will.  Exrs. 
p.  366 ;  Dayt.  Surr.  pp.  395,  396 ;  Williams  v.  Crary,  5  Cow.  370 ; 
8  Id.  246 ;  4  Wend.  443. 

3*2  Rop.  Leg.   1064,   1065,    1070;   Fitch   v.   Peckham,  16  Vt.    150; 


§  133.]  DISTRIBUTIVE   SHARES.  235 

It  is  a  common  law  doctrine  that  the  appointment  by  a 
creditor  of  his  debtor  to  be  his  executor,  operates  as  a 
release  of  the  debt,  for  the  reason  that  by  a  union  of  the 
rights  of  debtor  and  creditor  in  one  person,  the  debt  would 
no  longer  be  the  subject  of  an  action  at  law,  the  rule  being 
that  in  such  an  action  the  same  person  cannot  be  both 
plaintiff  and  defendant.^^  But  the  same  rule  does  not 
apply  in  equity.  There  the  executor  is  held  to  have  paid 
the  debt  to  himself,  and  will  be  accountable  for  the  amount, 
as  assets  in  his  hands,  to  any  party  entitled  to  claim  them.^' 

It  should  be  noticed  that  the  rule  of  law  in  question  does 
not  apply  to  the  appointment  of  the  debtor  as  administra- 
tor, because  that  is  the  act  of  the  law  and  not  of  the  cred- 
itor.^" 

II.     Distributive  Shares. 

§  133.  Distributive  shares  defined  and  explained. — In 
case  of  intestacy,  after  the  payment  of  debts  and  expenses 
of  administration,  the  personal  property  of  intestate 
passes  to  his  next  of  kin  under  statutes  of  distribution. 
The  several  portions  thus  distributed  constitute  what  are 
known  in  legal  parlance  as  "distributive  shares."  The 
statutes  of  distribution  in  the  United  States  are  based,  in 


Strong  V.  Williams,  12  Mass.  391  ;  Van  Ripper  v.  Van  Ripper, 
1  Green  Cli.  1 ;  Clarke  v.  Bogardus,  12  Wend.  67 ;  Zeigler  v.  Eckhert, 
6  Pa.  St.  13. 

35  Went.  Exrs.  73,  74,  75 ;  Stagg  v.  Beekman,  2  Edw.  Ch.  89 ;  Berry 
V.  Usher,  1 1  Ves.  87 ;  Fox  v.  Fox,  1  Atk.  463 ;  Needham's  Case,  8  Co. 
135a;  Chectham  v.  Ward,  1  B.  &  P.  630;  Waukford  v.  Waukford, 
1  Salk.  299. 

36  Treakly  v.  Fox,  9  B.  and  C.  130 ;  Strong  v.  Williams,  12  Mass. 
^91,  393 ;  Cloud  v.  Clinkinbeard,  8  B.  Mon.  397,  399. 

87  Waukford  v.  Waulcford,  1  Salk.  299,  303,  306 ;  supra,  §§  70,  90. 


236  DISTRIBUTIVE  SHARES.  [§  133. 

large  part,  upon  the  English  Statute  of  Distributions,  22 
and  23  Charles  II.,  ch.  lO.^^ 

It  has  been  shown^^  that  the  legal  title  to  intestate's 
personal  property  does  not  pass  directly  to  the  next  of  kin 
on  his  death;  that  title  can  accrue  to  them  only  through 
the  medium  of  an  administrator.  The  legal  title  passes 
to  the  administrator,  on  his  appointment,  in  trust  for  the 
purposes  of  administration,  but  the  next  of  kin,  entitled 
to  distributive  shares  under  the  statute,  have  a  vested  in- 
terest in  the  surplus  after  the  payment  of  debts  and  ex- 
penses of  administration. 

The  statutes  of  the  several  States  present  some  variety 
in  details,  an  examination  of  which  would  require  more 
space  than  the  scope  of  this  work  will  permit,  but  the  gen- 
eral principles  now  briefly  stated  apply  to  all. 

38  2  Kent,  Com.  p.  420 ;  1  Sch.  Pers.  Prop.  pp.  747-750 ;  Underhill, 
Wills,  pp.  837,  et  seq. 

39  Supra,  §  70,  and  cases  cited. 


§  134.]  STOCK    AND    STOCKHOLDERS.  237 

CHAPTER  XIII. 
STOCK    AND     STOCKHOLDERS. 

§  134.  Stock,  and  shares  of  stock,  defined. 

135.  Methods  of  acquiring  title  to  stock. 

136.  Liability  of  stockholders. 

137.  Assets  upon  dissolution  of  the  company. 

We  have  already  considered  the  organization  and  char- 
acter of  corporations,  and  incidentally  therewith  the  na- 
ture of  stock,  and  the  interest  and  rights  of  stockholders.^ 
But  the  great  and  constantly  increasing  importance  of 
this  species  of  personal  property  demands  further  atten- 
tion. 

§  134.  Stock,  and  shares  of  stock,  defined. — The  term 
"stock"  is  frequently  used  to  signify  money  invested  in 
business  by  an  individual  or  firm,  but  in  this  connection 
it  means  the  capital  of  business  corporations  and  joint- 
stock  companies.  The  money  or  property  contributed  by 
subscribers  to  the  fund  which  constitutes  the  business  cap- 
ital of  the  corporation  or  association,  is  termed  "capital 
stock."  The  amoimt  of  capital  stock  is  generally  fixed 
by  the  corporate  charter,  or  limited  by  the  statutes  under 
which  the  company  is  organized.^ 


1  Supra,  §§  30  and  31. 

2  Barry  v.  Merchants'  Ex.  Co.,  1  Sandf .  Ch.  280,  305 ;  Burrall  v. 
Bushvvick  R.  R.  Co.,  75  N.  Y.  211;  Wilhams  v.  Western  Union 
Tel.  Co.,  93  N.  Y.  162,  188;  Bailey  v.  Clark,  91  Wall.  284;  High- 
tower  V.  Thornton,  8  Ga.  486,  500;  St.  Joseph  R.  R.  Co.  v.  Shack- 
lett,  30  Mo.  551,  558;  St.  Louis  Iron  M.  etc.  Co.  v.  Loftin,  30  Ark. 
693,  709 ;  Bent  v.  Hart,  10  Mo.  App.  143,  146 ;  Cook  on  Stock,  §§  3, 
199 ;  Morawetz,  Corp.  §§  137,  781 ;  1  Sch.  Pers.  Prop.  p.  618,  et  seq. 


238  STOCK    AND    STOCKHOLDERS.  [§  134. 

The  capital  stock  of  a  company  is  sometimes  confused 
in  thought  with  the  amount  of  its  property,  but  the  two 
funds  are  clearly  distinguishable.  The  capital  stock  re- 
mains as  fixed  in  the  organization  of  the  company,  unless 
subsequently  changed  in  amount  by  authority  of  statute, 
but  the  property  of  the  company  may  vary  in  amount  and 
value  from  time  to  time,  as  affected  by  the  condition  of 
business,  and  by  gains  and  losses.  This  distinction  is 
emphasized  by  the  rule  that  dividends  can  legally  be  made 
only  from  net  profits ;  that  dividends  which  impair  the 
capital  stock  are  illegal,  and  may  be  recovered  back  from 
the  stockholders.* 

A  share  of  stock  embraces  and  represents  the  whole  in- 
terest of  the  holder  in  the  corporation,  or  company,  and 
all  his  rights  growing  out  of  the  relation.  These,  sum- 
marized, are  a  right  to  participate  in  the  management  of 
the  company,  to  share,  in  proportion  to  his  interest  in  the 
stock,  in  the  profits  when  declared  as  dividends,  and  to  re- 
ceive an  aliquot  part  of  the  proceeds  of  the  capital  and  as- 
sets on  dissolution  of  the  company,  after  payment  of  its 
debts.*  But  a  shareholder,  while  having  the  rights  now 
stated,  has  no  separate  legal  title  to  the  property  or  profits 


3  Citations  last  supra,  and  Cook  on  Stock,  §§  546,  547;  Hughes 
V.  Vermont  Cop.  Mining  Co.,  72  N.  Y.  207,  210;  Chaffee  v.  Rutland 
R.  R.  Co.,  55  Vt.  110;  Elkins  v.  Camden,  etc.,  R.  R.  Co.,  36  N.  J. 
Eq.  233;  Lockhart  v.  Van  Alstyne,  31  Mich.  76;  Pittsburgh,  etc., 
R.  R.  Co.  V.  County  of  Allegheny,  63  Pa.  St.  126;  Railroad  Com- 
pany V.  Howard,  7  Wall.  392;  Hastings  v.  Drew,  76  N.  Y.  9; 
Gratz  V.  Redd,  4  B.  Mon.  178;  Bank  of  St.  Marys  v.  St.  John,  25 
Ala.  566. 

*  Cook  on  Stock,  §  5 ;  Morawetz,  Corp.  §  288 ;  1  Potter,  Corp.  pp. 
329,  330;  Burrall  v.  Bushwick  R.  R.  Co.,  75  N.  Y.  211;  Plimpton  v. 
Bigelow,  93  N.  Y.  592,  599;  Field  v.  Pierce,  102  Mass.  253.  261; 
Jones  V.  Davis,  35  Ohio  St.  474,  477;  Harrison  v.  Vines,  46  Tex.  IS, 
21;  Fisher  v.  Essex  Bank,  5  Gray,  373,  378;  Neiler  v.  Kelley,  69 
Pa.  St.  403,  407. 


§  135.]  ACQUIRING  TITLE   TO   STOCK.  239 

of  the  corporation,  until  a  division  is  made,  or  a  dividend 
declared.'*  The  act  of  legally  declaring  a  dividend,  in  con- 
templation of  law,  has  the  effect  of  severing  the  stockhold- 
er's share  from  the  common  fund  of  the  company,  and  set- 
ting it  apart  for  his  use  and  benefit,  in  his  individual  right. 
The  share  thus  set  apart  becomes  immediately  a  debt  due 
from  the  company  to  the  shareholder,  which  he  may  re- 
cover by  an  action  at  law,  if  it  be  not  paid  on  demand.*^ 

It  sould  be  observed,  however,  that  the  dividend  of  a 
stockholder  is  applicable  to  a  debt  due  from  him  to  the 
company  at  the  time  the  dividend  becomes  payable,  and 
if  an  action  be  brought  for  the  dividend  the  company  may 
set  up  tlie  debt  by  the  way  of  set-off  or  counter-claim.'^ 

§  135.  Methods  of  acquiring  title  to  stock.— There  are 
two  general  methods  of  acquiring  stock,  and  thus  becom- 
ing stockholders ;  one  by  original  subscription  to  the  stock 
in  the  formation  of  the  company;  the  other  by  transfer 
from  a  stockholder. 

1.  Subscription. — The  amount  of  capital  of  a  private 
business  corporation  is  fixed  by  charter,  or  by  its  articles 
of  association  when  organized  under  a  general  statute,  and 


•>  Cook  on  Stock,  §§  534,  535 ;  Beverage  v.  New  York  El.  R.  R. 
Co.,  112  N.  Y.  1,  27;  Curry  v.  Woodward,  44  Ala.  305;  Boardman 
V.  Lake  Shore,  etc.,  R'y  Co.,  84  N.  Y.  157;  Goodwin  v.  Hardy, 
57  Me.  143;  Rand  v.  Hubbell,  115  Mass.  461,  474. 

^  Cook  on  Stock,  §  544 ;  Jackson's  Adm'rs  v.  Newark  Plank  Road 
Co.,  31  N.  J.  Law,  277 ;  Westchester,  etc.,  R.  R.  Co.  v.  Jackson, 
77  Pa.  St.  321  ;  Stoddard  v.  Shetucket  Foundry  Co.,  34  Conn.  542 ; 
Hall  V.  Rose  Hill,  etc.,  Co.,  6  Ohio  St.  489;  Fawcett  v.  Laurie,  1  Drew 
&  Sm.  192;  Dalton  v.  Midland  Counties  R'y  Co.,  13  C.  B.  474. 

^  Cook  on  Stock,  §  545 ;  Hagar  v.  Union  National  Bank,  63  Me. 
509;  King  v.  Patterson,  etc.,  R'y  Co.,  29  N.  J.  Law,  504;  Sargent 
V.  Franklin  Ins.  Co.,  8  Pick.  90;  Bates  v.  New  York  Ins.  Co.,  3  Johns. 
Cas.  238. 


240  ACQUIRING   TITLE    TO  STOCK.  [§  135. 

is  divided  into  a  certain  number  of  shares.  Subscriptions 
to  the  shares  of  stock  are  requisite,  both  to  complete  the 
organization  of  the  company,  and  to  furnish  the  necessary 
capital.  As  the  par  value  of  the  shares  is  not  ordinarily 
paid  in  full  by  the  subscribers  at  first,  it  becomes  essential 
to  the  life  of  the  company,  and  for  the  security  of  credit- 
ors, that  the  subscriptions  should  be  binding  and  enforce- 
able obligations,  taking  the  place  of  the  unpaid  balance  in 
making  up  the  capital  stock  of  the  company.  And  sub- 
scriptions are  held  to  be  contracts  which,  when  legally 
made,  are  binding  and  enforceable.  The  rights,  privileges, 
and  benefit  of  membership  in  the  company,  constitute  a 
valid  and  sufficient  consideration  for  the  promise  of  the 
subscriber,  express  or  implied.  The  preliminary  subscrip- 
tions become  vested  in  the  company  immediately  upon  its 
formation,  their  face  value  being  contributions  to  its  capi- 
tal stock.^  It  is  a  settled  rule  that  a  subscription  for  shares 
implies  a  promise  to  pay  for  them,  without  proof  of  an  ex- 
press promise,  or  of  any  particular  consideration.^ 

While,  on  the  one  hand,  the  unpaid  subscription  may  be 
recovered  by  an  action  at  law,  on  the  other  hand,  the  sub- 
scriber is  entitled  to  a  certificate  of  stock  representing  his 
interest  in  the  company.  If,  on  demand,  the  company  re- 
fuses to  issue  the  certificate,  the  subscriber  or  stockholder 
may  compel  its  issuance  by  a  suit  in  equity,  provided  the 

*  Cook  on  Stock  (2  Ed.),  §  52,  et  seq.;  Prendergast  v.  Turton, 
1  Young  &  C.  Ch.  97;  Baltimore,  etc.,  Turnpike  Co.  v.  Barnes, 
6  Harris  &  J.  (Md.),  57;  Kansas  City  Hotel  Co.  v.  Hunt,  57  Mo.  126; 
Beecher  v.  Dillsbury,  etc.,  R.  R.  Co.,  76  Pa.  St.  306 ;  Junction,  etc., 
R.  R.  Co.  V.  Reve,  15  Ind.  236;  Marsh  v.  Burroughs,  1  Wood.  463. 

^Citations  last  supra,  and  Hawley  v.  Upton,  102  U.  S.  314;  Buf- 
falo, etc.,  R.  R.  Co.  V.  Dudley,  14  N.  Y.  336;  Waukon,  etc.,  R.  R. 
Co.  V.  Dwyer,  49  Iowa,  121;  Mitchell  v.  Beckman,  64  Cal.  117; 
Merrimac,  etc.,  Co.  v.  Levy,  54  Pa.  St.  227 ;  Fry  v.  Lexington,  etc., 
R.  R.  Co.,  2  Mete.   (Ky.),  314;  Morawetz,  Corp.  §§  43-108. 


§  136.]  UABII.ITY  OF  STOCKHOLDERS.  241 

full  capital  stock  has  not  been  issued,  and  if  it  has  been, 
the  stockholder  may  recover  of  the  company  the  value  of 
the  shares  at  the  time  of  demand.^" 

2.  Transfer. — It  is  well  settled  that  stock  is  personal 
property,  transferable,  and  capable  of  alienation  and  suc- 
cession, like  other  species  of  personal  property,  and  by  the 
same  methods.  It  follows,  therefore,  that  one  may  acquire 
title  to  shares,  and  become  a  shareholder,  by  purchase  and 
transfer  from  another.^^ 

§  136.  Liability  of  stockliQlders,  and  how  enforced. — 

The  several  ways  in  which  a  stockholder  may  be  liable  on 
his  stock,  will  now  be  briefly  noticed. 

1.  To  the  company,  and  its  creditors. — It  has  already 
been  shown  that  a  stockholder  is  liable  to  the  company  on 
his  contract  for  the  unpaid  amount  of  his  subscription.^^ 
So,  also,  is  he  liable  to  the  corporation  creditors  for  such 
unpaid  amount,  by  virtue  of  the  doctrine,  now  well  estab- 
lished, that  unpaid  subscriptions  constitute  a  trust  fund 
for  the  benefit  of  the  company's  creditors.  Courts  of  equity 
by  their  flexible  and  efficient  methods  of  procedure,  will 

10  Cook  on  Stock,  §§  60,  192;  Fletcher  v.  McGill,  10  N.  E.  651 
Appeal  of  Rowley,  9  Atl.  Rep.  329 ;  Chester  Glass  Co.  v.  Dewey 
16  Mass.  94;  Fergeson  v.  Wilson,  L.  R.  2  Ch.  77;  Wyman  v.  Am 
Powder  Co.,  62  Mass.  168;  Finley,  etc.,  Co.  v.  Hurtz,  34  Mich.  89 
McCord  V.  Ohio  &  Miss.  R.  R.  Co.,  13  Ind.  220 ;  Bufifalo,  etc.,  R.  R 
Co.  V.  Dudley,  14  N.  Y.  336,  2,2,7;  Mitchell  v.  Beckman,  64  Cal.  117 
Burrows  v.   Smith,  10  N.  Y.  550. 

11  Cook  on  Stock,  §§  6,  7,  331;  Morawetz,  Corp.  §  172;  1  Potter, 
Corp.  §  257;  Heart  v.  State  Bank,  2  Dev.  Eq.  Ill;  Cole  v.  Ryan, 
52  Barb.  168 ;  Mobile  Mut.  Ins.  Co.  v.  Cullum,  49  Ala.  558 ;  Boston 
Music  Hall  v.  Cory,  129  Mass.  435 ;  Chouteau  Spring  Co.  v.  Har- 
ris, 20  Mo.  382;  Poole  v.  Middleton,  29  Beav.  446;  Brightwell  v. 
Mallory,  10  Yerg.  (Tenn.),  196;  Bank  of  Attica  v.  Mfgs.  &  Trs. 
Bank,  20  N.  Y.  501. 

^■^  Supra,  §§  134,  135. 
16 


242  LIABILITY  OF  STOCKHOLDERS.  [§  136. 

always  readily  give  their  protection  to  the  rights  and  inter- 
ests of  creditors,  who  are  a  favored  class  in  that  forum.^^ 

The  contract  of  subscription  does  not,  generally,  specify 
a  time  of  payment,  and  hence  is  regarded  and  treated  as  a 
promise  to  pay  in  the  future  at  such  times,  and  in  such 
parts,  as  the  company  may  officially  demand  by  way  of 
"calls."  The  calls,  however,  must  be  made  by  the  proper 
authorities,  and  in  accordance  with  law,  or  they  will  be  in- 
valid and  unavailable.^* 

The  authorities  are  not  in  agreement  Respecting  th!e 
necessity  of  giving  notice  of  the  call  to  the  stockholders  be- 
fore bringing  an  action  for  the  recovery  of  the  amount 
called  for.  A  majority  of  cases  hold  that  notice  is  unnec- 
essary in  the  absence  of  an  express  provision,  either  in  the 
charter  of  the  company,  the  statute  governing,  the  by-laws, 
or  the  subscription,  making  notice  a  condition  precedent  to 
the  maintenance  of  an  action.  This  holding  is  based  upon 
the  ground  that  the  contract  is  a  promise  to  pay  on  de- 
mand, and  that  the  commencement  of  an  action  is  a  suffi- 
cient   demand.      There    are,    however,    weighty    authorities 


13  Cook  on  Stock,  §  199,  et  scq. ;  1  Sch.  Pers.  Prop.  p.  646,  et  seq. ; 
Sawyer  v.  Hoag,  17  Wall.  610-620;  Wood  v.  Dummer,  3  Mason, 
308;  Germantown,  etc.,  Ry.  Co.  v.  Fitler,  60  Pa.  St.  124;  Hightower 
V.  Thornton,  8  Ga.  486 ;  Crawford  v.  Roher,  59  Md.  599 ;  Sanger  v. 
Upton,   91   U.    S.   56;   and  numerous   other  cases   in  the  same  line. 

1*  Cook  on  Stock,  §§  104-116;  Morawetz,  Corp.  §§  43-46,  ct  seq.; 
Boone,  Corp.  116,  118;  Braddock  v.  Phil.,  etc.,  R.  R.  Co.,  45 
N.  J.  L.  363 ;  Banet  v.  Alton,  etc.,  R.  R.  Co.,  13  111.  504 ;  Spangler 
V.  Ind.  &  111.  Central  R.  R.  Co.,  21  111.  276;  Grosse  Isle  Hotel  Co. 
V.  L'Anson's  Exrs.,  42  N.  J.  L.  10 ;  s.  c.  43  N.  J.  L.  442 ;  Pittsburg 
&  Cornellsville  R.  R.  Co.  v.  Clarke,  29  Pa.  St.  146;  Budd  v.  Mult- 
nomah St.  Ry.  Co.,  15  Pac.  Rep.  659;  Eakright  v.  Logansport  & 
N.  Ind.  R.  R.  Co.,  13  111.  404;  Johnson  v.  Crawfordsville  R.  R.  Co., 
11  Ind.  280;  Fairfield  C.  T.  Co.  v.  Thorp,  13  Conn.  173. 


§  136.]  LIABILITY  OF  STOCKHOLDERS.  243 

on  the  other  side,  which  seem  to  the  writer  more  in  accord- 
ance with  sound  reason,  and  the  dictates  of  justice.^^ 

The  company  is  not  limited  to  an  action  at  law  for  the 
recovery  of  unpaid  subscriptions,  several  other  remedies 
being  available.  First,  a  suit  may  be  brought  on  the  sub- 
scription, a  judgment  obtained,  and  the  stock  sold  on  ex- 
ecution to  apply  on  the  judgment.  Second,  the  company 
may  bring  an  action  for  a  breach  of  the  contract,  and  re- 
cover as  the  measure  of  damages  the  difference  between 
the  value  of  the  stock  at  the  subscription  price,  and  its 
market  value  at  the  date  of  default  in  making  payment. 
Third,  there  is  the  remedy  for  forfeiture  of  the  stock  for 
non-payment.  The  common-law  action  to  collect  the  sub- 
scription as  a  debt,  and  forfeiture,  are  the  remedies  gen- 
erally elected.  The  forfeiture  may  be  effected,  either  by 
what  is  termed  a  "strict  foreclosure,"  where  the  company 
takes  the  stock  to  itself,  or  by  a  public  sale  thereof,  and  ap- 
plication of  the  proceeds  in  payment  of  the  subscription. 
Forfeiture,  not  being  a  common-law  remedy,  is  only  avail- 
able to  the  company  when  authorized  by  statute  or  charter, 
or  by  consent  of  the  stockholders  indorsed  upon  the  cer- 
tificate of  stock.^^ 


15  Carlisle  v  Cahawba  &  Marion  R.  R.  Co.,  4  Ala.  (N.  S.),  70; 
Wear  v.  Jacksonville  &  Savannah  R.  R.  Co.,  24  111.  593;  Scarlett 
V.  Academy  of  Music,  43  Md.  203 ;  Essex  Bridge  Co.  v.  Tuttle, 
2  Vt.  393;  Spangler  v.  Ind.  &  111.  Central  R.  R.  Co.,  21  111.  276; 
Rutland  &  Burlington  R.  R.  Co.  v.  Thrall,  35  Vt.  336;  Miles  v. 
Bough,  3  Q.  B.  845 ;  Edinburgh,  etc.,  Ry.  v.  Hibblewhite,  6  M.  &  W., 
707 ;  Alabama  &  Florida  R.  R.  Co.  v.  Rowley,  9  Fla.  508 ;  Hughes  v. 
Antietam  Mfg.  Co.,  34  Md.  316. 

1^  Cook  on  Stock,  §§  121,  123,  and  cases  cited;  Chase  v.  East 
Tenn.,  etc.,  R.  R.  Co.,  5  Lea,  415;  Rand  v.  White  Mountains  R.  R. 
Co.,  40  N.  H.  79;  Barton's  Case,  4  DeGex  &  J.  46;  Budd  v.  Mult- 
nomah St.  Ry.  Co.,  15   Pac.  Rep.  659;  Westcott  v.  Minnesota,  etc.. 


244  IvIABIUTY  OF  STOCKHOIvDERS.  [§  136. 

While  several  remedies  are  open  to  the  choice  of  the  com- 
pany as  now  shown,  it  is  held  in  the  larger  number  of  cases 
involving  the  question,  that  forfeiture  of  stock  cannot  be 
supplemented  by  an  action  at  law  for  the  unpaid  balance, 
if  any,  due  on  the  subscription;  that  the  election  of  for- 
feiture is  exhaustive  of  remedies. ^^  It  should  be  observed, 
however,  that  there  are  dissenting  cases,  holding  that  after 
forfeiture  the  company  may  have  an  action  for  deficiency, 
the  same  as  in  the  case  of  a  mortgage  foreclosure.^^ 

The  forfeiture  of  a  shareholder's  stock  has  the  import- 
ant effect  of  relieving  him  from  liability  to  the  creditors 
of  the  company,  even,  where  the  debts  were  contracted 
prior  to  the  forfeiture  of  the  stock.^^  But  a  stockholder 
cannot,  by  his  own  will  and  act,  abandon  his  shares  and 
effect  a  forfeiture  that  will  discharge  him  from  liability  on 
his  own  subscription. '° 

A  bill  in  equity  is  the  ordinary  remedy  of  the  creditor 


Co.,  23  Mich.  145;  Perrin  v.  Granger,  30  Vt.  595;  Weeks  v.  Sil- 
ver, etc.,  Co.,  55  J.  &  S.  (N.  Y.),  1;  Matter  of  Long  Island  R.  R. 
Co..  19  Wend.  Z7 ,  32  Am.  Dec.  429. 

^^  Cook  on  Stock,  §§  124,  125 ;  Morawetz,  Corp.  §  122,  et  scq. ; 
Delaware,  etc.,  Co.  v.  Samson,  1  Binn.  70;  Instone  v.  Fratikford 
Bridge  Co.,  2  Bibb.  576;  Rensselaer,  etc.,  R.  R.  Co.  v.  Wetsel,  21 
Barb.  56 ;  Freeman  v.  Winchester,  18  Miss.  577 ;  Mann  v.  Cook, 
20  Conn.  178;  Rutland,  etc.,  R.  R.  Co.  v.  Thrall,  35  Vt.  536,  and 
many  other  cases  in  the  same  line. 

18  See  Carson  v.  Arctic  Mining  Co.,  5  Mich.  288 ;  Danbury,  etc., 
R.  R.  Co.  V.  Wilson,  22  Conn.  435 ;  Great  Northwestern  Ry.  Co.  v. 
Kennedy,  4  Exch.  417,  425. 

19  Cook  on  Stock,  §  127;  Macauley  v.  Robinson,  18  La.  An.  619; 
Allen  V.  Montgomery  R.  R.  Co.,  11  Ala.  437,  450;  Mills  v.  Stewart, 
41  N.  Y.  384;  Woollaston's  Case,  4  DeGex  &  J.  437;  Ex  parte, 
Beresford,  2  Macn.  &  G.  197. 

20  Rockville,  etc..  Turnpike  Co.  v.  Maxwell,  2  Cranch,  C.  C.  451 ; 
Sweny  v.  Smith,  L.  R.  7  Eq.,  324 ;  Stocken's  Case.  L.  R.  3  Ch.  412 ; 
Count  Phalen's  Case,  L.  R.  9  Eq.,  107;  Thomas'  Case,  L.  R.  13  Eq. 
437;  Ross  v.  Bank,  etc.,  19  Pac.  Rep.  243. 


§  136.]  LIABILITY  OF   STOCKHOLDERS.  245 

to  enforce  his  rights.  It  is  both  appropriate  and  efficient, 
inasmuch  as  it  brings  all  the  parties  interested  in  the 
matter  before  the  court,  and  deals  with  the  equities.-^ 

Other  remedies,  however,  have  been  held  available  to 
creditors.  When  the  stockholder  is  in  default  for  non- 
payment of  installments  after  call,  he  is  a  debtor  of  the 
company,  and  this  debt,  like  any  debt,  is  subject  to  at- 
tachment or  garnishment  in  a  suit  by  a  creditor  against 
the  company.  And  it  has  been  held,  also,  that  for  an  un- 
paid subscription,  after  call,  the  creditor  has  a  remedy 
by  action  at  law  against  the  delinquent  stockholder,  who 
will  be  Hable  in  such  action  to  the  full  extent  of  his  unpaid 
subscription.^^ 

2.  Statutory  liability — Stockholders  in  a  corporation  are 
liable  only  to  the  extent  of  the  par  value  of  their  stock, 
unless  made  so  by  statute  for  the  benefit  of  company 
creditors.  Additional  liability  for  this  purpose  is  fre- 
quently created  by  charter,  or  by  a  general  statute.  But 
such  a  statutory'  provision  will  be  strictly  construed  by  the 
courts,  in  obedience  to  a  well  settled  rule  of  construction 
applicable  to  statutes  in  derogation  of  the  common  law.^^ 
The   statutory  liability,  being  designed   for   the   benefit   of 

21  Cook  on  Stock,  §§  204-211;  1  Story,  Eq.  Jur.  §  350;  Griffith 
V.  Mangam,  73  N.  Y.  611 ;  Ward  v.  Griswoldville  Mfg.  Co.,  16  Conn. 
593;  Shickle  v.  Watts,  7  S.  W.  Rep.  274;  Christenson  v.  Eno,  106 
N.  Y.  97,  100;  Crawford  v.  Roher,  59  Md.  590;  Hightower  v.  Thorn- 
ton, 8  Ga.  486;  Adler  v.  Milwaukee,  etc.,  Co.,  13  Wis.  57;  Henry  v. 
Vermillion,  etc..  Turnpike  Co.,   17   Ohio,   187. 

22  See  Cook  on  Stock,  §§  201,  203,  and  cases  cited. 

^'i  Bishop,  Wr.  Laws,  §§  119,  189a;  People  v.  Peacock,  98  111. 
172 ;  O'Reilly  v.  Bard,  105  Pa.  St.  569 ;  Chase  v.  Lord,  77  N.  Y.  1 : 
Gray  v.  Coffin,  9  Cush,  192;  Grose  v.  Hilt,  36  Me.  22;  Dauchy  v. 
Brown,  24  Vt.  197;  Salt  Lake  City  Nat.  Bank  v.  Hendrickson, 
40  N.  J.  Law,  52;  Davidson  v.  Rankin,  34  Cal.  53. 


246  LIABILITY  OF   STOCKHOLDERS.  [§  136. 

creditors,  can  be  enforced  by  them  only;  and  generally  the 
remedy  is  in  a  court  of  equity.-* 

A  court,  in  the  exercise  of  its  equity  power,  will  make  a 
call  for  unpaid  subscriptions,  or  order  the  payment  of 
the  same  for  the  benefit  of  creditors,  when  the  company 
unjustifiably  neglects  or  refuses  so  to  do,  and  such  action 
becomes  necessary  to  meet  corporate  obligations.  For- 
tunately for  the  public,  it  is  not  discretionary  with  a 
corporation,  or  its  officers,  to  deprive  creditors  of  the  relief 
due  them  in  justice  and  equity. ^^ 

Receivers  and  assignees  in  bankruptcy  of  an  insolvent 
corporation,  representing  both  the  company  and  its  cred- 
itors, are  clothed  with  the  power,  and  charged  with  the 
duty,  of  collecting  the  unpaid  subscriptions,  so  far  as 
may  be  necessary  for  the  purpose  of  paying  the  corpo- 
rate debts.  And  the  appropriate  remedy  is  by  bill  in 
equity,  to  which  all  the  delinquent  share  owners  should  be 
made  parties.^® 

3.  Liability  from  defective  organisation. — To  effect  a 
legal  organization  of  a  corporation,  or  a  joint  stock  com- 
pany under  statutory  authority,  all  the  essential  provi- 
sions of  the   statute  must  be   substantially   complied   with. 

2*  Cook  on  Stock,  §§  218,  222,  and  cases  cited. 

25  Cook  on  Stock,  §§  108,  207 :  Scoville  v.  Thayer,  105  U.  S.  143 
Glenn   v.    Williams,    60   Md.   93;    Hatch   v.    Dana,    101    U.    S.   205 
Glenn  v.  Sample,  80  Ala.  159;  Marsh  v.  Burroughs,  1  Woods,  463 
Boeppler   v.    Menown,    7   Mo.    App.   447 ;    Curry    v.    Woodward,    53 
Ala.  371. 

26  Cook  on  Stock,  §  208;  High,  Rec.  (2  Ed.)  1;  Nathan  v.  Whit- 
lock,  9  Paige,  152;  Dayton  v.  Borst,  31  N.  Y.  435;  Mean's  Appeal, 
85  Pa.  St.  75;  Chandler  v.  Brown,  77  111.  333;  Tobey  v.  Russell, 
9  R.  I.  58;  Stewart  v.  Lay,  45  Iowa,  604;  Clarke  v.  Thomas,  ,34 
Ohio  St.,  46;  Phoenix,  etc.,  Co.  v.  Badger,  67  N.  Y.  294;  Sawyer 
V.  Hoag,  17  Wall.  610,  621;  Upton  v.  Tribilcock,  91  U.  S.  45;  Payson 
V.  Stoever.  2  Dill.  427. 


§  136.]  LIABILITY  OF  STOCKHOLDERS.  247 

For  a  failure  in  this  regard  liabilities  may  accrue  to  stock- 
holders which  would  not  have  arisen  under  a  regular 
organization.  While,  as  a  general  rule,  a  subscriber  for 
stock  cannot  avail  himself  of  a  defective  organization  of 
the  company  as  a  defense  when  sued  for  calls,  nor  can  the 
company  repudiate  its  contracts  on  such  ground,  both  being 
estopped  from  setting  up  such  a  defense,^^  a  company 
creditor  may  proceed  against  the  individual  members  for 
the  recovery  of  his  debt.  The  doctrine  of  estoppel  does 
not  apply  to  the  creditors  in  such  a  case,  as  he  is  seeking 
to  enforce,  not  to  repudiate  a  contract.^*  But  the  mere 
fact  of  an  irregularity  in  the  organization,  does  not  neces- 
sarily render  the  members  absolutely  liable  for  all  the  debts 
of  the  company.  Each  will  be  liable  to  the  extent  he  would 
have  been  had  the  original  purpose  been  the  formation  of 
a  partnership.  He  will  not  be  liable  on  a  debt  contracted 
before  he  was  a  member,^^  and  it  has  been  held  that  one 
who  becomes  a  member  subsequently  to  the  attempted 
organization,  taking  no  part  therein,  or  in  the  management 
of  the  company,  cannot  be  held  liable  for  its  debts.^** 
Where,  however,  a  general  statute  authorizes  the  formation 
of  companies  for  the  prosecution  of  certain  kinds  of  busi- 
ness, an  organization  under  it  which  does  not  specify  its 
particular  business  will  be  void  as  a  corporation,  and  the 
members  will  become  liable  as  partners.^^ 

27  See  Cook  on  Stock,  §§  183-186,  and  cases  cited;  Buffalo  & 
A.  R.  R.  Co.  V.  Cary,  26  N.  Y.  75. 

28Lauferty  v.  Wheeler,  11  Abb.  N.  C.  228  Chaffe  v.  Ludeling, 
27  La.  An.  607;  National  Bank,  etc.,  v.  Landon,  45  N.  Y.  410,  414; 
Ridenour  v.  Mayo,  40  Ohio  St.  9. 

2»  Fuller  V.  Rowe,  57  N.  Y.  23. 

30DeWitt  V.  Hastings,  69  N.  Y.  518;  Stafford  Bank  v.  Palmer, 
47  Conn.  443. 

31  Cook  on  Stock,  §§  231-234,  and  cases  cited. 


248  UABIUTY  OF   STOCKHOLDERS.  [§  136. 

4.  Liability  as  affected  by  transfers. — This  topic  em- 
braces the  liability  of  transferer  and  transferee,  and,  also, 
transfers  made  prior,  and  subsequent,  to  registration  in 
the  corporate  stock  book.  Shares  may  be  transferred  at 
any  time  after  the  contract  of  subscription  is  made,  either 
before  or  after  registration,  and  also  either  before  or  after 
payment  in  part,  or  in  whole,  of  the  subscription  price. 
And  where  an  absolute  transfer  in  good  faith  is  made,  and 
duly  recorded  in  the  corporate  stock  book,  the  transferer  is 
wholly  relieved  from  all  further  liability  for  the  subscrip- 
tion price.^^  The  burden  thus  lifted  from  the  tranferer 
rests  thereafter  upon  the  trans feree.^^ 

From  the  rules  now  stated,  it  would  seem  to  follow 
logically  that  the  transferee  is  not  liable,  either  to  the 
company  for  an  unpaid  subscription,  or  to  creditors  for 
corporate  debts,  prior  to  registration  of  the  transfer,  until 
which  time  the  transferer  is  not  relieved  from  liability, 
and  such  is  the  law.^* 

It  may  happen,  that  intermediate  the  contract  of  transfer 
and  the  registration,  calls  will  be  made,  or  creditors'  rights 
intervene,  and  in  such  contingency  what  the  the  relations, 
liabilities,  and  rights  of  the  respective  parties?  It  has 
been   shown   that   the  transferer    is,   and   the   tranferee    is 


'•2  Billings  V.  Robinson,  94  N.  Y.  415,;  Ex'rs  of  Gilmore  v.  Bank 
of  Cincinnati,  8  Ohio,  62,  71;  Huddersfield  Canal  Co.  v.  Buckley, 
7  T.  R.  36;  Wakefield  v.  Fargo,  90  N.  Y.  213;  Chouteau  Spring 
Co.  V.  Harris,  20  Mo.  382;  Allen  v.  Montgomery  R.  R.  Co.,  11  Ala. 
437,  451 ;  McKenzie  v.  Kittridge,  24  U.  C.  C.  P.  1 ;  Provincial  Ins. 
Co.  V.  Shaw,  U.  C.  Q.  B.  533. 

^-Merimac  Mining  Co.  v.  Levy,  54  Pa.  St.  227;  Upton  v.  Hans- 
brough,  3  Biss.  417;  Webster  v.  Upton,  91  U.  S.  65;  Hall  v.  United 
States  Ins.  Co.,  5  Gill  (Md.),  484;  Merrimac  Mining  Co.  v.  Bagley, 
14  Mich.  501 ;  Brigham  v.  Mead,  10  Allen,  245 ;  Hartford,  etc.,  R.  R. 
Co.  v.  Boorman,  12  Conn.  530. 

2*  See  Cook  on  Stock,  §§  258,  260,  261,  and  cases  cited. 


§  136.]  LIABIUTY  OF  STOCKHOLDERS.  249 

not,  liable  to  the  company  or  its  creditors  until  registration. 
While  this  rule  governs  as  between  the  parties  to  the 
transfer  on  the  one  hand  and  the  company  and  its  creditors 
on  the  other,  a  different  relation  exists  between  the  parties 
to  the  transfer  themselves,  and  to  them,  in  that  relation, 
equitable  rules  apply.  The  transferee,  being  the  real  and 
beneficial  owner  of  the  stock,  is  equitably  bound  to  respond 
to  calls  and  claims.  Hence  he  may  be  compelled  to  in- 
demnify the  transferer  for  all  liabilities  incurred  and  paid 
by  him  after  transfer  prior  to  registration.^^ 

While  title  to  the  stock  may  pass  absolutely  by  transfer 
from  the  vendor  to  the  vendee,  yet  in  the  hands  of  the 
latter  it  may  be  subject  to  a  corporate  lien  for  a  debt  due 
from  the  former  to  the  company  at  the  time  of  the  transfer. 
It  is  well  settled  that  no  such  lien  exists  at  common  law  f^ 
but  it  is  equally  well  settled  that  the  company  may  have  a 
lien  in  virtue  of  a  statute,  or  by  charter.  But  whether 
such  lien  may  obtain  by  force  of  a  by-law  cannot  be  con- 
sidered as  settled,  there  being  a  difference  of  judicial  opin- 
ion on  the  question.^'' 

If  a  shareholder  is  compelled  to  pay  a  debt  of  the  com- 
pany of  which  he  is  a  member,  he  may  maintain  an  action 
against  his  co-shareholders  for  contribution.  This  is  in 
virtue  of  the  just  demand  of  equity  principles,  based  upon 
the  maxim  that  equality  is  equity.  Where  several  persons 
are  equally  bound  for  the  payment  of  the  same  debt,  and 
are  equally  relieved  on  its  payment  by  one  of  them,  the 


35  Johnson  v.  Underhill,  52  N.  Y.  203;  Hutzler  v.  Lord,  64  Md. 
534;  Kellogg  v.  Stockwell,  75  111.  68;  Walker  v.  Bartlett,  18  C.  B. 
845 ;  Brigham  v.  Mead,  10  Allen,  245 ;  Griswell  v.  Bristowe,  L.  R. 
3  C.  P.  112;  Davis  v.  Haycock,  L.  R.  4  Exch.  371. 

3 «  Cook  on  Stock,  §  521,  and  cases  cited;  Morawetz,  Corp.  §  201, 
et  seq. 

2^  See  Cook  on  Stock,  §  522,  et  seq, ;  §  532,  and  cases  cited. 


250  UABILITY  OF  STOCKHOI^DERS.  [§  136. 

plainest  dictates  of  justice  require  that  all  should  contri- 
bute, each  in  proportion  to  the  benefit  received  by  him.^* 

5.  Liability  of  pledges. — A  pledgee  in  whose  name  the 
pledged  stock  stands  on  the  corporate  books  is,  as  to  cred- 
itors of  the  company,  the  absolute  owner,  and  liable  as 
such.^*  The  pledgee  may,  however,  avoid  this  liability  by 
having  the  stock  registered  in  the  name  of  another  person 
designated  by  him,  the  nominee  in  such  case  being  gen- 
erally a  person  of  no  pecuniary  responsibility,  a  mere 
"dummy."*" 

6.  Liability  of  executors  and  administrators. — The  liabil- 
ity of  a  shareholder  at  the  time  of  his  decease  devolves 
upon  his  estate  in  the  hands  of  his  executor  or  administra- 
tor. Hence,  these  personal  representatives  succeed  to  the 
liability  of  decedent,  to  the  extent  of  the  property  that 
comes  to  their  hands  for  the  purposes  of  administration, 
the  same  as  in  case  of  other  charges  upon  the  estate.*^ 
And  the  executor  or  administrator  may  become  personally 

38  1  Story,  Eq.  Jur.  §  493 ;  Pom.  Eq.  §§  405,  406 ;  Cook  on  Stock, 
§  227;  Aspinwall  v.  Sacchi,  57  N.  Y.  331;  Umsted  v.  Buskirk,  17 
Ohio  St.  113;  Stewart  v.  Lay,  45  Iowa,  604;  Matthews  v.  Albert, 
24  Md.  527;  Hadley  v.  Russell,  40  N.  H.  109,  112;  Farrow  v.  Biv- 
ings,  13  Rich.  Eq.  25. 

39  Cook  on  Stock,  §§  247,  470;  Pullman  v.  Upton,  96  U.  S.  328; 
Autman's  Appeal,  98  Pa.  St.  505;  Crease  v.  Babcock,  51  Mass.  525; 
Rosevelt  v.  Brown,  11  N.  Y.  148;  Matter  of  the  Empire  Bank,  18 
N.  Y.  199;  Royal  Bank  of  India's  Case,  L.  R.  7  Eq.  91;  Weiker- 
sheim's  Case,  L.  R.  8  Ch.  831 ;  Price  &  Brown's  Case,  3  DeGex  & 
Sm.  146. 

40  Cook  on  Stock,  §§  247,  466,  470;  Anderson,  Receiver,  v.  Phila- 
delphia Warehouse  Co.,  Ill  U.  S.  479;  Welles  v.  Larrabee,  36  Fed. 
866;  Henkle  v.  Salem  Mfg.  Co.,  39  Ohio  St.  547;  Newry,  etc.,  R'y 
Co.  V.  Moss,  14  Beav.  64 ;  Hiatt  v.  Griswold,  5  Fed.  573. 

*^  Baird's  Case,  L.  R.  5  Ch.  725 ;  Thomas'  Case,  1  DeGex  &  Sm. 
579;  Evans  v.  Coventry,  25  L.  J.  Ch.  489;  Ex  parte  Gouthwait. 
3  Mac.  &  G.  187;  Crandall  v.  Lincoln,  52  Conn.  73;  Bailey  v.  Hol- 
lister,  26  N.  Y.   112. 


§  137.]  ASSETS   UPON    DISTRIBUTION.  251 

liable  upon  the  stock,  if  he  appropriates  the  assets  of  the 
estate  to  legacies,  without  making  provision  to  meet  the 
liabiHty  of  the  estate  on  the  stock. ^- 

7.  Liability  of  agents. — When  stock  is  subscribed  for,  or 
purchased,  by  one  person  as  the  agent  of  another,  and 
registered  on  the  stock  book  of  the  company  in  the  agent's 
name,  both  the  agent  and  the  principal  will  be  liable  to 
corporate  creditors,  who  may  hold  either  responsible  on 
the  stock.  But  the  agent  will  have  a  just  and  enforceable 
claim  against  his  principal  for  any  charges  he  may  have 
been  compelled  to  pay  as  such  liability.*^ 

§  137.  The  assets  upon  dissolution  of  the  company. — 

We  have  seen  that  the  capital  stock  and  property  of  the 
company  constitute  a  trust  fund  for  the  benefit  of  cred- 
itors,** and  also  that  the  stockholders  are  entitled  to  a 
distributive  share  of  the  assets  upon  dissolution  of  the 
company,  after  payment  of  the  corporate  debts. *^  The 
company  is  the  trustee  of  this  fund,  and  the  corporate  cred- 
itors are  the  beneficiaries.  In  virtue  of  the  well  settled 
doctrine  of  equity,  the  latter  may  follow  and  claim  the 
trust  property  through  all  changes  of  form,  so  long  as  it 
can  be  identified,  and  into  whosever  possession  it  may  pass, 
except  bona  fide  purchasers.*^ 


*2Jeflferys  v.  Jefferys,  24  L.  T.  Rep.  N.  S.  177;  Thomas'  Case, 
supra;  Cook  on  Stock,  §  248. 

*3  Cook  on  Stock,  §  249,  and  cases  cited. 

**  Supra,  §136,  sub.  1. 

*■' Supra,  §  134;  and  see  Krebs  v.  Carlisle  Bank,  2  Wall  (C.  C), 
33 ;  James  v.  Woodruff,  10  Paige,  541 ;  Wood  v.  Dummer,  3  Mason, 
308,  322;  Heath  v.  Barmore,  SO  N.  Y.  302;  Burrall  v.  Bushwick 
R.  R.  Co.,  75  N.  Y.  211;  Day  v.  Postal  Tel.  Co.,  7  Atl.  Rep.  608: 
Mamma  v.  The  Potomac  Co.,  8  Peters,  281,  286. 

4«  Story,  Eq.  Jur,  §  1252;  Pom.  Eq.  §§  1048-1051,  1080;  Morawetz. 
Corp.  §§  1035,  et  seq.;  Cook  on  Stock,  §§  641,  642. 


252  ASSETS    UPON   DISTRIBUTION.  [§  137. 

If  the  assets  are  placed  in  the  hands  of  any  person,  offi- 
cial or  otherwise,  for  distribution,  they  may  be  reached  by 
creditors,  and  also  by  stockholders  entitled  to  a  share.  The 
remedy  of  the  latter  is  a  suit  in  equity,  to  which  the  com- 
pany, as  well  as  the  person  holding  the  assets,  should  be 
made  a  party.*" 

The  real  estate  of  a  corporation,  it  is  now  generally  held, 
constitutes  a  part  of  its  assets,  and,  on  dissolution,  is  avail- 
able to  creditors  and  stockholders,  each  in  their  order,  and 
according  to  their  respective  rights.*^  It  should  be  noticed, 
however,  in  passing  that  while  the  weight  of  authority 
sustains  the  rule  as  now  stated,  there  is  not  entire  unanim- 
ity of  adjudications  on  the  question.  And,  moreover,  the 
decisions  in  some  of  the  States  are  governed  by  statutes 
which  change  the  common-law  rule. 

Important  questions  have  arisen  and  been  much  dis- 
cussed in  regard  to  the  sale  of  all  the  corporate  property  by 
the  directors,  or  in  pursuance  of  a  vote  of  a  majority  of 
the  stockholders  against  the  wishes  of  the  minority,  and 
especially  respecting  a  sale  to  another  company  and  taking 
its  stock  in  payment,  or  a  consolidation  with  another,  for 
tlie  purpose  of  dissolving  the  old,  and  forming  a  new  com- 
pany. Without  attempting  to  review  the  discussions  on 
the  subject,  it  may  be  stated  as  settled  by  the  weight  of 
authority,  that  neither  the  directors,  nor  a  majority  of  the 
stockholders,  have  power  to  sell  all  the  corporate  property 


*^  Young  V.  Moses,  53  Ga.  628.  For  remedies  in  some  other  con- 
tingencies, see  Horner  v.  Carter,  11  Fed.  Rep.  362,  and  Re  Pontius, 
26  Hun,  232. 

*8  Lum  V.  Robertson,  6  Wall.  277 ;  Bacon  v.  Robertson,  18  How. 
(U.  S.),  480;  Robinson  v.  Lane,  19  Ga.  337;  Lothrop  v.  Stedman. 
13  Blatchf.  134;  Blake  v.  Portsmouth,  etc.,  R.  R.  Co.,  39  N.  H. 
435;  Fox  v.  Horah,  1  Ired.  (N.  C),  358;  Curry  v.  Woodward,  53 
Ala.  371;  Powell  v.  North  Mo.  R.  R.  Co.,  42  Mo.  63;  People  v. 
O'Brien,  111  N.  Y.  1. 


§  137.]  ASSETS    UPON    DISTRIBUTION.  253 

against  the  dissent  of  a  minority,  however  small,  unless  the 
sale  be  made  for  the  purpose  of  paying  the  debts  of  the 
corporation,  or  with  a  view  to  its  dissolution,  and  a  bona 
fide  discontinuance  of  the  business.*^  In  case,  however,  a 
corporation  becomes  financially  embarrassed,  or  proves  a 
failing  enterprise,  it  seems  that  a  majority  of  the  stock- 
holders may  dispose  of  all  the  corporate  property  with  a 
view  to  dissolution,  even  against  the  dissent  of  a  minority,"" 
and  may  accept  stock  of  another  corporation  in  payment. 
But  dissenting  stockholders  cannot  be  compelled  to  take  the 
stock  of  another  company  in  payment  of  their  interest  in 
the  assets  of  the  dissolved  company.  They  are  entitled 
to  cash. 

The  shares  of  stock  in  the  new  company  thus  taken  in 
payment  for  the  assets  of  the  old,  may  be  distributed 
among  such  of  the  stockholders  of  the  old  as  consent  to 
accept  them,  and  the  balance  must  be  sold  for  cash,  and 
the  proceeds  distributed  pro-  rata  among  the  dissentients 
according  to  their  respective  interests  in  the  assets  of  the 
old  company."^ 


49  Abbott  V.  American  Hard  Rubber  Co.,  33  Barb.  578;  4  Blatchf. 
489;  Smith  v.  New  York,  etc.,  18  Abb.  Pr.  419,  435;  Robbins  v. 
Clay,  33  Me.  132;  Sheldon,  etc.,  Co.  v.  Eickmeyer,  etc.,  Co.,  56 
How.  Pr.  71,  90  N.  Y.  607;  Middlesex  R.  R.  Co.  v.  Boston,  etc., 
R.  R.  Co.,  115  Mass.  347;  Kean  v.  Johnson,  9  N.  J.  Eq.  401;  Erwin 
V.  Oregon  Ry.  &  Nav.  Co.,  27  Fed.  Rep.  635 ;  Boston,  etc.,  R.  R.  Co. 
V.  N.  Y.  &  N.  E.  R.  R.  Co.,  13  R.  I.  260.  And  see  Cook  on  Stock 
(2  Ed.),  §§  629,  630. 

50  See  Lanman  v.  Lebanon  Valley  R.  R.  Co.,  30  Pa.  St.  42. 

51  Cook  on  Stock,  §  667 ;  State  v.  Bailey,  16  Ind.  46 ;  Kelley  v. 
Mariposa,  etc.,  Co.,  4  Hun,  632 ;  McCurdy  v.  Myers,  44  Pa.  St.  535 ; 
Ex  parte  Bagshaw,  L.  R.  4  Eq.  341 ;  Treadwell  v.  Salisbury  Mfg. 
Co.,  7  Gray,  392;  Black  v.  Delaware,  etc..  Canal  Co.,  22  N.  J.  Eq. 
130,  415,  24  Id.  455;  Buford  v.  Keokuk,  etc.,  Packet  Co.,  3  Mo. 
App.  159. 


254  MONEY.  [§  139. 


CHAPTER  XIV. 

MISCELLANEOUS    SPECIES    OF    PERSONAL    PROPERTY 
NOT   HEREINBEFORE   SPECIFICALLY   TREATED. 

§§  138-140.  Money. 

141-142.  Debts. 

143-150.  Mortgages. 

151-153.  Bottomry,  and  respondentia,  bonds. 

154-157.  Rent. 

I.  Money. 

§  138.  What  it  is. — Money,  in  the  ordinary  and  gen- 
eral acceptance  of  the  term,  means  that  which  constitutes 
the  common  medium  of  exchange  in  a  civiHzed  nation. 
It  includes  coin,  gold  and  silver  and  other  metals  stamped 
by  public  authority,  and  used  as  the  standard  of  values  and 
medium  of  commerce  and  also  any  currency  usually  and 
lawfully  employed  in  business  as  the  equivalent  of  coined 
metals,  such  as  bank  notes  and  the  like.^ 

§  139.  Constitutional  money. — It  is  claimed  that  under 
certain  provisions  of  the  United  States  Constitution  the 
term  "money"  is  limited  to,  or  synonymous  with  coin. 
These  provisions  are  found  in  Art.  I,  Sees.  8  and  10.  Sec. 
8  confers  upon  Congress  the  power  "to  coin  money,  regu- 

1  Bouv.  L.  Diet.  "Money;"  Web.  Unab'gd,  "Money;"  Bolles  on 
Banks,  §  33;  Wharton  v.  Morris,  1  Dall.  124;  Lee  v.  Biddis,  Id.  175; 
Hopson  V.  Fountain,  5  Humph.  (Tenn.),  140;  Wyer  v.  Dorchester, 
etc.,  11  Cush.  51  ;  Richard  v.  Bankes,  13  East,  20;  Parker  v.  AIerchant» 
1  Phil.  (N.  C),  355;  In  re  Powell,  Johns,  49,  5  Jur.  N.  S.  331; 
Fryer  v.  Ranken,  1 1  Sim.  55 ;  Vaisey  v.  Reynolds,  5  Russ.  12 ; 
Jenkins  v.  Fowler,  63  N.  H.  244;  Bouv.  L.  Diet.  "Money  Had  and 
Received."    And.  L.  Diet.  "Money." 


§  139.]  CONSTITUTIONAL    MONEY.  255 

late  the  value  thereof,  and  of  foreign  coin."  Sec.  10 
provides  that  "no  state  shall  *  *  *  coin  money;  emit 
bills  of  credit;  nor  make  anything  but  gold  and  silver  coin 
a  tender  in  payment  of  debts."  These  provisions  seem 
to  indicate  that  the  framers  of  the  Constitution  intended 
to  make  gold  and  silver  coin  the  money  of  the  United  States 
in  exclusion  of  other  currency,  and  also  the  only  legal 
tender  in  payment  of  debts.  Congress  seems  to  have  fa- 
vored this  view  from  the  fact  that,  until  recently  copper 
and  nickel  coins,  although  authorized  to  "pass  current" 
as  are  the  coins  of  foreign  nations,  the  value  thereof  being 
regulated  by  Congress  under  the  power  granted  by  the 
Constitution,^  were  not,  like  gold  and  silver,  declared  to  be 
"legal  tender  in  payment  of  debts. "^  But  under  the  ex- 
igencies of  the  late  civil  war  Congress  authorized  the 
issuance  by  the  government  of  notes,  generally  known  as 
"legal  tenders"  or  "greenbacks,"  and  provided  in  effect 
that  these  notes  should  serve  the  same  purpose  as  a  circulat- 
ing medium,  and  represent  the  same  value,  as  gold  and 
silver  coin  of  the  same  denominations.  The  several  acts 
of  Congress  known  as  the  "Legal  Tender  Acts,"  were 
passed  February  25,  1862;  July  11,  1862;  and  March  3, 
1863.  These  acts  made  the  notes  which  they  authorized 
"receivable  in  payment  of  all  loans  made  to  the  United 
States,  and  of  all  duties,  debts,  and  demands  due  to  the 
United  States,  except  duties  on  imports  and  interest  on  the 
public  debt,  and  of  all  claims  and  demands  against  the 
United  States  substantially,  except  for  interest  on  its  coin- 
bearing  loans."  It  was  further  provided  that  these  notes 
should    "be    lawful    money  and    legal    tender    in    payment 


2  Art.  I,  §§  8,  10. 

3  Bouv.    L.    Diet.    "Money;"    1    Sch.    Pers.    Prop.    p.    440;    Whart. 
Com.  Am.  Law,  §  412;  Legal  Tender  Cases,  12  Wall.  457. 


256  CONSTITUTIONAL    MONEY.  [§  139. 

of  all  debts,  public  and  private,  within  the  United  States." 
It  is  not  surprising  that  an  earnest  controversy  arose 
in  the  country,  and  in  the  courts,  in  regard  to  the  constitu- 
tionality of  the  "Legal  Tender  Acts."  The  Supreme 
Court  of  the  United  States,  in  Hepburn  v.  Griswold*  de- 
cided by  a  majority  of  one  judge,  that  the  provision  mak- 
ing such  notes  a  legal  tender,  as  to  debts  contracted  both 
before  and  after  the  enactment  of  the  statute,  was  un- 
constitutional. Subsequently,  on  the  addition  of  two  new 
judges  to  the  bench,  the  decision  in  Hepburn  v.  Griswold 
was  overruled,  and  the  constitutionality  of  tjhe  statute 
affirmed  by  a  majority  of  one.^  The  State  courts  furnish 
numerous  decisions  in  harmony  with  the  last  cited  cases, 
some  in  obedience  to  the  authority  of  the  United  States 
Supreme  Court,  and  others  on  an  independent  judgment  of 
the  law.^  Nevertheless,  in  view  of  the  clear  language  of 
the  Constitution,  the  construction  generally  given  it  by 
Congress  and  the  courts,  until  the  preservation  of  the  na- 
tional life  required  extraordinary  measures,  and  the  di- 
vided opinion  of  the  judges  of  the  United  States  Supreme 
Court,  there  is  ground  for  the  opinion,  widely  entertained, 
that  the  Legal  Tender  Acts,  in  so  far  as  they  substitute 
paper  for  coin  in  payment  of  debts  generally,  and  make 
such  paper  legal  tender,  can  only  be  justified  and  sustained 
as  a  temporary  measure  of  controlling  necessity .'' 

Although  a   debt  created  by  a   contract  to  pay  money 

*  8  Wall.  603. 

5  Legal  Tender  Cases,  12  Wall.  457. 

6  Smith  V.  Smith,  1  Thomp.  &  Cook  (N.  Y.),  63;  Smith  v.  Wood, 
Z7  Tex.  616 ;  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  400 ;  Schol- 
Icnberger  v.  Brinton,  52  Penn.  St.  9,  100 ;  Latham  v.  United  States, 
1  Court  CI.  149 ;  George  v.  Concord,  45  N.  H.  484 ;  Carpenter  v. 
Northfield  Bank,  39  Vt.  46;  and  many  others. 

T  1   Sch.  Pers.  Prop.  pp.  445^^ ;  Whart.  Com.  Am.  Law,  §  442. 


§  140.]  SUBJECT   TO   LEVY   UNDER   EXECUTION.  257 

generally  may,  as  the  law  now  stands,  be  discharged  by 
legal-tender  notes,  a  contract  may  be  made  expressly  or 
impliedly,  requiring  payment  "in  specie,"  or  in  gold  and 
silver  coin,"  under  which  these  notes  cannot  be  substituted 
for  gold  and  silver,  and  will  not  constitute  a  legal  tender.® 

The  States,  it  is  held,  have  the  constitutional  authority  to 
prescribe  the  currency  in  which  debts  due  to  themselves 
for  taxes  must  be  paid,"  and  creditors  may  stipulate  in 
contracts  the  currency  in  which  debts  due  them  thereunder 
may,  or  shall,  be  paid.^** 

§  140.  Money  subject  to  levy  under  execution. — Money, 
being  personal  property,  is  subject  to  levy  by  execution 
against  the  property  of  the  defendant,  and,  as  a  general 
rule,  must  be  paid  over  by  the  officer  as  so  much  money 
collected,  without  exposing  it  for  sale." 

But  in  the  New  York  Code  of  Civil  Procedure,^^  it  is 
provided  that  where  the  money  levied  upon  consists  of  gold 
coin,  the  officer  must  sell  it  like  other  personal  property, 
unless  he  is  otherwise  directed  by  an  order  of  the  judge, 
or  of  the  judgment  in  the  particular  cause. 

Money  is  only  subject  to  levy,  however,  when  it  belongs 
to  the  judgment  debtor,  and  is  within  his  control.    In  obed- 

8  Legal  Tender  Cases,  12  Wall.  457 ;  Trebilcock  v.  Wilson,  Id. 
687;  Bronson  v.  Rhodes,  7  Id.  229;  Hinneman  v.  Rosenback,  39  N.  Y. 
98;  Essex  Co.  v.  Pacific  Mills,  14  Allen,  389;  Myers  v.  Kaufman,. 
Zl  Ga.  600;  Bank  of  Commonwealth  v.  Van  Vleck,  49  Barb.  508; 
Frank  v.  Calhoun,  59  Pa.  St.  381 ;  The  Surplus,  etc.,  of  the  Edith, 
5  Ben.  144;  Bowen  v.  Darby,  14  Fla.  202;  Maryland  v.  Railroad  Co., 
22  Wall.  105. 

"  Bronson  v.  Rhodes,  7  Wall.  229 ;  Carpenter  v.  Atherton,  25  Cal. 
564;  Lane  v.  Gluckauf,  28  Id.  288;  Linn  v.  Minor,  4  Nev.  462. 

1°  Lane  County  v.  Oregon,  7  Wall.  71. 

^^  Smith's  Sheriffs,  etc.,  p.  326. 

"§  1410. 
17 


258  DEBTS.  [§141. 

ience  to  this  rule  it  has  been  held  that  money  collected  on 
an  execution,  while  in  the  hands  of  the  collecting  officer, 
cannot  be  levied  upon  under  an  execution  against  the  per- 
son for  whom  it  was  collected,  the  money  not  being  strictly 
paid  over/^ 

So  as  to  money  deposited  in  a  bank  by  the  judgment 
debtor,  for  such  money,  under  an  ordinary  general  de- 
posit becomes  the  property  of  the  bank.  The  relation  of 
debtor  and  creditor  between  the  bank  and  the  depositor 
is  created.^* 

In  application  of  the  same  rule  it  has  been  held,  that 
money  collected  by  an  attorney  for  the  judgment  debtor 
is  not  subject  to  levy  by  execution  against  the  latter,  while 
the  money  remains  in  the  attorney's  hands. ^^ 

II.  Debts. 

§  141.  Definition  and  classification. — The  term  "debt" 
is  from  the  Latin  dehere,  signifying  to  owe;  and  in  a  gen- 
eral sense  may  be  defined  as  that  which  is  due  a  person 
under  any  form  of  obligation  or  promise;  or,  more  con- 
cisely stated,  that  which  is  owed.  But,  in  certain  species 
of  contract  the  term  is  ordinarily  used  in  a  more  restricted 
sense,  signifying  a  debt  of  record,  or  a  debt  by  contract 
under  seal,  termed  a  specialty.  There  is  a  third  and  quite 
extensive  class  of  debts  under  the  general  definition  above, 
founded  on  contracts  not  under  seal,  and  termed  simple 
contract  debts.^® 


1^  Dubois  V.  Dubois,  6  Cowen,  499 ;  Baker  v.  Kenworthy,  41  N.  Y. 
215;  Turner  v.  Tendall,  1  Cranch,  116. 

^*  Canrole  v.  Cone,  4  Barb.  220;  National  Citizens'  Bank  v.  Howard, 
3  How.  Pr.  Rep.  (N.  S.),  512;  Commercial  Bank  of  Albany  v. 
Hughes,  17  Wend.  94. 

15  Maxwell  v.  McGee,  12  Cush.  137. 

16  1  Bouv.  L.  Diet.  "Debt ;"  1  Sch.  Pers.  Prop.  pp.  459^t61 ;  Wil- 


§  141.]  DEBTS.  259 

The  classification  of  actions,  including  the  action  of  debt, 
is  herein  omitted  as  properly  belonging  to  the  subject  of 
pleading.  It  does  not  strictly  follow  the  above  divisions, 
and  there  is,  moreover,  a  lack  of  uniformity  in  the  decisions 
on  the  subject. 

The  different  classes  of  debts  will  now  be  noticed, 
1.  A  debt  of  record. — This  is  briefly  and  well  defined  by 
Blackstone,  as  "a  debt  due  by  the  evidence  of  a  court  of 
record."  ^^  And  a  court  of  record  is  defined  by  the  same 
author  as  that,  "where  the  acts  and  judicial  proceedings 
are  enrolled  in  parchment  for  a  perpetual  memorial  and 
testimony."  ^^  With  the  recognition  of  the  fact  that  paper 
may  now,  as  a  general  rule,  be  substituted  for  parchment, 
Blackstone's  definition  is  sufficiently  accurate  for  the  pres- 
ent time.  It  must  not  be  assumed,  however,  that  the  mere 
fact  that  a  record  is  kept  determines  the  character  of  a 
court.^®  Another  definition  of  a  court  of  record  is  furnished 
by  Chief  Justice  Shaw,  of  Massachusetts,  in  Ex  parte  Glad- 
hill,^^  giving  more  fully  the  characteristics  and  distinctive 
qualities  of  these  courts.  In  passing  upon  the  character 
of  the  police  court  in  Lowell,  after  mentioning  its  organ- 
ization and  functions,  he  says:  "This  indicates  the  estab- 
lishment of  a  court,  or  judicial,  organized  tribunal,  having 
attributes  and  exercising  functions,  independently  of  the 
person  of  the  magistrate  designated  generally  to  hold  it, 
and  distinguishes  it  from  the  case  of  a  justice  of  the  peace, 

liams,  Pers.  Prop.  pp.  96,  104,  105,  109;  2  Black.  Com.  p.  465;  3 
Id.  p.  154;  Gray  v.  Bennett,  3  Met.  522;  Cable  v.  McCune,  26  Miss. 
371  ;  Mildam  Foundry  v.  Hovey,  21  Pick.  417.  And.  L.  Diet.  "Debt." 

17  2  Black.  Com.  p.  465. 

18  3  Black.  Com.  pp.  24,  25. 

1*  See  1  Bouv.  L.  Diet.  "Court  of  Record,"  and  cases  there  cited.. 
20  8  Met.  168,  170.  And.  L.  Diet.  "Court  of  Record." 


260  DEBTS.  [§141. 

on  whom,  personally,  certain  judicial  powers  are  conferred 
by  law." 

It  should  be  noticed,  also,  that  the  character  of  a  court, 
as  to  whether  of  record  or  otherwise,  as  well  as  its  jurisdic- 
tion, powers  and  functions,  is  often  determined  by  statute. 

The  judgment  roll  of  the  court  of  record  was  regarded 
by  the  Enghsh  common  law  of  such  high  authority  that  its 
truth  could  not  be  questioned,  the  settled  rule  and  maxim, 
being  "that  nothing  shall  be  averred  against  a  record,  nor 
shall  any  plea,  or  even  proof,  be  admitted  to  the  contrary." 
And  if  the  existence  of  the  record  was  denied,  it  had  to 
be  tried  by  nothing  but  itself,  on  bare  inspection."  But 
this  rule,  wherever  existing,  does  not  prevent  the  impeach- 
ment of  a  judgment  for  want  of  jurisdiction  in  the  court 
which  assumed  to  render  it,  or  for  fraud.  It  is  absolutely 
essential  to  the  validity  of  a  judgment,  that  the  court  ren- 
dering it  should  have  jurisdiction,  both  of  the  subject 
matter,  and  of  the  parties.  Without  such  jurisdiction  the 
judgment  is  simply  a  nullity,  and  fraud  vitiates  every- 
thing with  which  it  is  tainted.^^  But,  as  a  general  rule, 
it  is  not  competent  to  show  a  want  of  jurisdiction  in  opposi- 
tion to  the  recitals  in  the  record,  provided  the  court  be 
competent,  by  its  constitution,  to  decide  on  its  own  juris- 
diction. There  is  a  distinction  in  this  regard  between 
courts  of  general,  and  of  special,  or  limited,  jurisdiction. 
In  the  latter,  the  record  of  judgment  should  contain  all 
the   facts  essential  to  confer  jurisdiction;  in  the   former. 


21  See  3  Black.  Com.  p.  25 ;  1  Sch.  Pers.  Prop.  461,  et  seq. 

22  3  Black.  Com.  pp.  24,  25. 

23  Towns  V.  Springer,  9  Ga.  130;  Miller  v.  Barkeloo,  8  Ark.  318 
Wicks  V.  Ludwig,  9  Cal.  173;  Johnson  v.  Johnson,  30  111.  215 
Clark  V.  Bryan,  16  Md.  171;  Westervelt  v.  Lewis,  2  McLean,  511 
Bryan  v.  Blythe,  4  Blackf.  (Ind.),  249;  Smith  v.  Knowlton,  11  N.  H 
191 ;  Barrett  v.  Crane,  16  Vt.  246. 


§  141.]  DEBTS.  261 

jurisdiction  will  be  presumed  until  the  contrary  be  shown. 
In  Grignon  v.  Astor,~*  the  distinction  is  thus  stated :  "The 
true  line  of  distinction  between  courts  whose  decisions  are 
conclusive  if  not  removed  by  an  appellate  court,  and  those 
whose  proceedings  are  nullities  if  the  jurisdiction  does  not 
appear  on  their  face,  is  this :  A  court  which  is  competent 
by  its  constitution  to  decide  on  its  own  jurisdiction,  and  to 
exercise  it  to  final  judgment  without  setting  forth  in  its 
proceedings  the  facts  and  evidence  on  which  it  is  rendered, 
whose  record  is  absolute  verity,  not  to  be  impugned  by 
averment  or  proof  to  the  contrary,  is  of  the  first  descrip- 
tion; there  can  be  no  judicial  inspection  behind  the  judg- 
ment, save  by  appellate  power.  A  court  which  is  so  con- 
stituted that  its  judgment  can  be  looked  through  for  the 
facts  and  evidence  which  are  necessary  to  sustain  it, 
whose  dicision  is  not  evidence  of  itself  to  show  jurisdiction 
and  its  lawful  exercise,  is  of  the  latter  description.  Every 
requisite  for  either  must  appear  on  the  face  of  their  pro- 
ceedings, or  they  are  nullities."  ^^ 

In  courts  of  general  jurisdiction  the  question  must  be 
raised,  and  the  evidence  showing  a  want  of  jurisdiction 
produced,  on  the  trial.  As  a  rule  the  judgment  cannot  be 
impeached  collaterally,  except  for  fraud.^** 

As  to  whether  foreign  judgments,  rendered  by  a  court 
of  general  jurisdiction,  may  be  impeached  for  want  of 
jurisdiction,  by  going  behind  the  record,  the  authorities 
are  not  in  agreement,  so  far,  at  least,  as  the  judgments  of 
our  sister  States  are  concerned.     These  States  being  inde- 


2*2  How.  319. 

25  And  see  Bouv.  L.  Diet.  "Jurisdiction,"  subs.  4  and  5  and  the 
cases  there  cited.    And.  L.  Diet.  "Jurisdiction." 

28  Hartman  v.  Ogborn,  54  Pa.  St.  120 ;  Fisk  v.  Miller,  20  Tex.  579 ; 
Lewis  V.  Rogers,  16  Pa.  St.  18 ;  Thorn  v.  Newsom,  64  Tex.  161 ; 
Hall  V.  Durham,  109  Ind.  434. 


262  DEBTS.  [§141. 

pendent  sovereignties,  judgments  rendered  in  the  courts 
of  one  State  are  foreign  judgments  in  every  other,  unless 
they  are  placed  on  an  equality  with  domestic  judgments 
by  the  Constitution  of  the  United  States.  That  instru- 
ment provides  that  "full  faith  and  credit  shall  be  given 
in  each  State  to  the  acts,  records,  and  judicial  proceedings 
of  every  other  State;"  and  authorizes  Congress  to  pre- 
scribe the  manner  of  proving  such  acts,  records  and  pro- 
ceedings.^^ Under  this  authority  Congress  provided  that 
records  and  judicial  proceedings,  when  authenticated  as 
directed  by  the  act,  shall  receive  such  faith  and  credit  in 
every  court  within  the  United  States  as  they  have  by  law 
or  usage  in  the  courts  of  the  State  from  whence  they  are 
taken.2*  Under  these  provisions,  it  would  seem  that  judg- 
ments recovered  in  one  State  ought  to  have  the  same  force 
and  effect  in  every  other  as  domestic  judgments.  But  the 
courts  have  not  all  taken  this  view,  at  least  in  regard  to 
discrediting  the  record  on  the  question  of  jurisdiction.^^ 

If  the   record  of   a  judgment  in  a  sister  State  may  be 
attacked   collaterally,  and  the  record  discredited,   when  it 


27  Art.  4,  §  1. 

28  Act.  of  May  26th,  1790;  U.  S.  R.  S.  sec.  905. 

29  See  Starbuck  v.  Murray,  5  Wend.  148 ;  Bradshaw  v.  Heath,  13 
Wend.  407 ;  Hall  v.  Williams,  6  Pick.  232 ;  Gleason  v.  Dodd,  4  Met. 
333;  Norwood  v.  Cobb,  24  Tex.  551;  Knowles  v.  Gas  Light  Co.,  19 
Wall.  58;  Kerr  v.  Kerr,  41  N.  Y.  272  (but  see  Hunt  v.  Hunt,  72 
N.  Y.  217,  240)  ;  Kerr  v.  Coudy,  9  Bush  (Ky,),  372;  Pennywit  v. 
Foote,  27  Ohio  St.  600;  and  Nepton  v.  Leaton,  71  Mo.  358;  New- 
comb  V.  Peck,  17  Vt.  302;  Wilcox  v.  Kassick,  2  Mich.  165;  Bimelar 
V.  Dawson,  5  111.  536;  Roberts  v.  Caldwell,  5  Dana,  512;  Lincoln  v. 
Toewr,  2  McLean,  473 ;  Caughran  v.  Oilman,  72  Iowa,  570 ;  Rankin 
V.  Barnes,  5  Bush  (Ky.),  20;  Wetherill  v.  Stillman,  65  Pa.  St.  105; 
Galpin  v.  Page,  18  Wall.  350;  and  Hanley  v.  Donaghue,  116  U.  S. 
1 ;  Haddock  v.  Haddock,  201  U.  S.  562 ;  Atherton  v.  Atherton,  181 
U.  S.  155. 


§  141.]  DEBTS.  263 

comes  under  judicial  cognizance  in  other  States,  a  fortiori 
may  a  judgment  rendered  by  a  court  in  a  foreign  country 
be  impeached  in  like  manner  and  on  the  same  grounds. 

That  a  judgment,  foreign  or  domestic,  may  be  im- 
peached collaterally  for  fraud,  by  third  parties  whose  rights 
or  interests  are  endangered  or  injured  thereby,  is  well 
settled.^"  And  a  court  of  equity  may  vacate  and  set  aside 
a  judgment,  at  the  instance  of  parties  or  privies,  where  it 
has  been  procured  by  collusion,  and  is  injurious  to  their 
interests.^^ 

But  a  judgment  upon  the  merits,  by  a  competent  court, 
having  jurisdiction  over  the  subject-matter  and  the  parties, 
while  unreversed,  and  not  set  aside  or  vacated,  is  binding 
and  conclusive  upon  the  parties  and  privies,  both  as  to  law 
and  fact,  in  respect  to  all  matters  actually  litigated  in  the 
action,  and  also  all  matters  which  might  have  been  ad- 
judicated under  the  pleadings.^^ 

30  Thompson's  Appeal,  57  Pa.  St.  175:  Atkinson  v.  Allen,  12  Vt. 
619;  Hall  v.  Hamlin,  2  Watts  (Pa.),  354;  People  v.  Phcenix  Bank, 
7  Bosw.  20 ;  Lewis  v.  Rogers,  16  Pa.  St.  18 ;  Dixey  v.  Pollock,  8 
Cal.  570;  Willard  v.  Whitney,  49  Me.  235;  Whetstone  v.  Whet- 
stone, 31  Iowa,  276;  Cowin  v.  Toole,  Id.  513. 

"Field  V.  Flanders,  40  III.  470;  Dexter  v.  Voorhies,  81  N.  Y. 
153;  Hunt  v.  Hunt,  72  Id.  217;  Harbaugh  v.  Kohn,  52  Ind.  243; 
Harris  v.  Cornell,  80  111.  54;  Doughty  v.  Doughty,  27  N.  J.  Eq. 
315;  Craft  v.  Thompson,  51  N.  H.  536;  Holland  v.  Trotter,  22 
Gratt.  136 ;  Graham  v.  Roberts,  1  Head,  56,  59 ;  Huxley  v.  King, 
40  Mich.  7Z. 

32  Campbell  v.  Strong,  Hemp.  265;  Hollister  v.  Abbott,  31  N.  H. 
442;  Wall  v.  Wall,  28  Miss.  409;  Warburton  v.  Aken,  1  McLean, 
460;  Swiggart  v.  Harber,  5  111.  364;  LaGrange  v.  Ward,  11  Ohio, 
257;  Hammell  v.  Thurmond,  17  Ark.  203;  Housemire  v.  Moulton, 
15  Ind.  367;  Hart  v.  Jewett,  11  Iowa,  276;  Page  v.  Esty,  54  Me. 
319;  People  v.  Smith,  51  Barb.  360;  Gardner  v.  Buckbee,  3  Cow. 
120;  Dick  v.  Webster,  6  Wis.  481;  Stockton  v.  Ford,  18  How.  418; 
Mathews  v.  Durgee,  17  Abb.  Pr.  256;  Fairchild  v.  Lynch,  99  N.  Y. 
359. 


264  DEBTS.  [§141. 

The  effect  of  foreign  judgments  as  res  judicata  is  not 
so  well  established.  It  is  generally  agreed,  however,  that 
foreign  judgments  in  rem,  when  not  impeached  for  want 
of  jurisdiction  or  fraud,  have  the  same  force  and  effect  as 
domestic  judgments.  But  in  respect  to  the  conclusiveness 
of  foreign  judgments  in  personam,  the  authorities  are  not 
in  agreement.^^  The  scope  of  this  work  will  not  permit  a 
discussion  of  this  point. 

2.  Recognizance. — A  debt  may  also  be  created  by  recog- 
nizance, which  is  an  obligation  entered  into  before  a  court 
or  officer  duly  authorized  for  that  purpose,  with  a  condition 
to  do,  or  cause  to  be  done,  some  particular  act  which  is 
therein  specified.  This  undertaking  by  the  cognizor  is 
made  a  record  of  the  court,  and  thus  becomes  an  obligation 
of  record.  The  undertaking  may  be  made  by  bail,  in  civil 
cases,  conditioned  that  they  will  pay  the  debt,  interest  and 
costs  recovered  by  the  plaintiff;  and  for  other  purposes 
under  statutes;  or,  in  criminal  cases,  conditioned  for  the 
appearance  of  a  party  before  the  proper  court,  to  answer 
to  such  charges  as  are  or  shall  be  made  against  him.^*  A 
recognizance  taken  by  a  court  of  inferior  jurisdiction,  must 
contain  sufficient  recitals  in  the  condition  to  show  that  the 
court  has  jurisdiction  of  the  subject  matter,  or  the  recog- 
nizance will  be  void,  the  same  rule  applying  to  a  recogni- 
zance as  to  a  judgment  by  such  a  court.^* 

33  1  Greenl.  Ev.  §§  541,  546. 

3*2  Black.  Com.  p.  342;  2  Bouv.  L.  Diet.  "Recognizances;"  Wil- 
liams' Pers.  Prop.  p.  105 ;  Race  v.  Mississippi,  25   Miss.  54. 

35  Bridge  v.  Ford,  4  Mass.  641;  State  v.  Smith,  2  Me.  62;  Dodge 
v.  Kellock,  13  Me.  136;  Commonwealth  v.  Loveridge,  11  Mass. 
2>2,7 ;  Vose  v.  Deane,  7  Mass.  280 ;  Darling  v.  Hubbell,  9  Conn.  350 ; 
State  v.  Whittaker,  19  La.  Ann.  142;  State  v.  Randolph,  26  Mo. 
213;  Commonwealth  v.  Otis,  16  Mass.  198;  Dow  v.  Prescott,  12 
Mass.  419. 


§  141.]  DEBTS.  265 

3.  Specialty  debts. — The  second  class  of  debts  are  what 
are  termed,  in  brief,  specialties,  that  is  a  deed,  or  contract 
under  seal.  It  includes  a  sealed  conveyance  of  real  estate; 
a  deed-poll,  that  is,  a  deed  from  one  to  another  who  does 
not  join  in  it;  an  indenture,  that  is  a  deed  in  which  two  or 
more  persons  join  in  mutual  covenants;  bonds,  and,  in 
short,  all  writings  obligatory  under  seal.^" 

The  essentials  of  a  valid  specialty  are  substantially  the 
same  as  any  other  valid  contract,  with  a  seal  added.  A 
specialty  is  regarded  in  law  as  superior  to  an  unsealed 
instrument;  and  hence,  if  the  parties  to  a  simple  contract — 
that  is  an  unsealed  contract — enter  into  a  specialty  on  the 
same  matter,  and  co-extensive  therewith,  the  former  is 
merged  in  and  extinguished  by  the  latter.^'  It  was  an 
early  and  well  established  doctrine  of  the  common  law,  that 
a  specialty  cannot  be  varied  or  abrogated  by  words  written 
or  unwritten,  if  they  are  not  under  seal.  But  this  rule  has 
been  modified,  if  not  wholly  reversed,  as  appears  by  modern 
authorities.^^ 

4.  Simple  contract  debts. — This  is  the  lowest  class  of  con- 
tract debts,  and  falls  under  the  general  definition  above 
given  in  the  beginning  of  this  season.  It  includes  all 
contracts  not  under  seal,  both  oral  and  written,  and  em- 

36  2  Black.  Com.  p.  465;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  104- 
110;  Williams,  Pers.  Prop.  p.  106;  1  Sch.  Pers.  Prop.  p.  465; 
Benson  v.  Benson,  1  P.  Wms.,  130,  131 ;  Marriot  v.  Thompson, 
Willes,  186,  189;  Laidley  v.  Bright,  17  W.  Va.  779;  Seymont  v. 
Street,  5  Neb.  85;  Bank  of  United  States  v.  Dormally,  8  Pet.  361, 
371. 

37  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  129;  1  Chit.  Cont.  (11  Am. 
Ed.)  9;  Robbins  v.  Ayers,  10  Mo.  538;  Banorgee  v.  Hovey,  5  Mass. 
11;  Rhoads  v.  Jones,  92  Ind.  328;  Boale  v.  Mayor,  19  C.  B.  N.  S. 
76;   Sharp  v.  Gibbs,  C.  B.  N.  S.  527. 

38  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  130-137;  Canal  Co.  v.  Ray, 
101  U.  S.  522,  527. 


266  HOW  DISCHARGED.  [§  142. 

braces  a  large  proportion  of  the  debts  growing  out  of  the 
various  departments  of  business,  which  furnish  the  sub- 
jects of  litigation.^* 

§  142.  Debts,  how  discharg-ed. — There  are  various  ways 
in  which  debts  may  be  discharged,  or  the  debtor  released 
from  his  legal  obligation ;  as  payment ;  accord  and  satisfac- 
tion ;  bankruptcy ;  release ;  recission ;  lapse  of  time ;  nova- 
tion; former  recovery;  and,  generally,  by  performance  of 
the  condition.    These  will  now  be  briefly  noticed. 

1.  Payment. — This  subject  has  already  been  sufficiently 
considered.*" 

2.  Accord  and  satisfaction. — This  is  an  executed  agree- 
ment between  the  parties,  made  by  the  debtor,  and  accepted 
by  the  creditor  or  claimant,  in  satisfaction  and  discharge 
of  the  original  debt  or  damage.*^  A  mere  unexecuted 
agreement  by  way  of  accord,  will  not  discharge  the  orig- 
inal obligation,  nor  bar  an  action  upon  it,  unless  the  agree- 
ment itself  is  made  the  satisfaction.  The  creditor  or 
claimant  may  accept  a  new  promise  in  satisfaction  of  his 
debt  or  claim.*-  The  effect  of  the  new  agreement,  whether 
in  itself  a  satisfaction,  is  a  question  of  construction.  If  the 
new  promise  be  foimded  upon  a  new  and  valid  considera- 

^^2  Black.  Com.  p.  466;  Williams'  Pers.  Prop.  p.  110;  Bishop, 
Cont.   (2nd  Enl.  Ed.),  §  163,  ct  scq. 

^'^  Supra,  §  112. 

•*i2  Pars.  Cont.  (7  Ed.),  p.  681,  et  scq.;  1  Bouv.  L.  Diet.  "Ac- 
cord;" 3  Black.  Com.  p.  16;  2  Greenl.  Ev.  §  28.  And.  L.  Diet. 
"Accord." 

*-2  Pars.  Cont.  (7  Ed.),  p.  682;  Cockv.  Honychurch,  T.  Raym. 
203;  2  Keble,  690;  Peytoe's  Case,  9  Rep.  79b;  Watkinson  v.  In- 
glesby,  5  Johns.  386 ;  Frost  v.  Johnson,  8  Ohio.  393 ;  Woodruff  v. 
Dobbins,  7  Blackf.  582;  Ballard  v.  Noaks,  2  Pike,  45;  Brooklyn 
Bank  v.  DeGrauw,  23  Wend.  342;  Bryant  v.  Proctor,  14  B.  Mon. 
457 ;  Bigelow  v.  Baldwin,  1  Gray,  245 ;  Babcock  v.  Hawkins,  23 
Vt.  561 ;  Simmons  v.  Clark,  56  111.  96 ;  Pettis  v.  Ray,  12  R.  I.  344. 


§  142.]  HOW  DISCHARGED.  267 

tion,  and  is  binding  on  the  original  promisor,  it  will  gen- 
erally warrant,  if  not  require,  a  construction  making  the 
new,  a  satisfaction  of  the  old,  promise;*^  and,  as  in  other 
cases  of  contract,  the  intention  of  the  parties  will  be  in- 
fluential in  determining  the  construction. 

In  case  of  an  undisputed  debt  for  a  specific  sum,  or  of  a 
claim  for  liquidated  damages,  the  acceptance  by  the  cred- 
itor, or  claimant,  of  a  less  sum  in  satisfaction,  will  not  bar 
an  action  for  the  balance.'**  If,  however,  the  promise  of 
a  smaller  sum  be  made  upon  additional  security  by  a  third 
party,  or  any  other  new  and  valid  consideration,  the  prom- 
ise and  payment  will  work  a  satisfaction.*^ 

It  is  held  that  an  accord  and  satisfaction  made  before 
default  in  payment  or  performance  by  the  debtor  cove- 
nantor, is  not  a  bar  to  an  action  for  a  subsequent  breach.*^ 

3.  Bankruptcy. — While  as  a  general  rule  every  debt 
entitled  to  be  proved  as  a  claim  may  be  discharged  under 
the  existing  bankruptcy  act,  there  are  certain  exceptions. 

No  debt  incurred  after  a  petition  in  bankruptcy  has  been 
filed  can  be  discharged.*^  It  is  also  a  fundamental  rule 
that  obligations  due  the  state  or  soverign  are  not  affected 
by  the  bankruptcy  statutes.    Therefore  all  fines  imposed  as 


*^  Good  V.  Cheeseman,  2  B.  &  Ad.  704 ;  Evans  v.  Powis,  1  Exch. 
907;  Bayley  v.  Homan,  3  Ring.  (N.  C),  621;  Wentworth  v.  Bul- 
len,  9  B.  &  C.  850. 

**  Harriman  v.  Harriman,  12  Gray,  341  ;  Bunge  v.  Koop,  5  Rob.  1  ; 
Ryan  v.  Ward,  48  N.  Y.  204;  Pinnel's  Case,  5  Rep.  117;  Thomas 
V.  Heathom,  2  B.  &  C.  477;  Blanchard  v.  Noyes,  3  N.  H.  518; 
Wheeler  v.  Wheeler,  11  Vt.  60;  Bailey  v.  Day,  26  Me.  88. 

■'•^' Kceler  v.  Salisbury,  Zi  N.  Y.  648;  Nassoy  v.  Tomlinson,  148 
N.  Y.  326 ;  2  Pars.  Cont.  pp.  619,  620,  and  cases  there  cited ;  2 
Greenl.   Ev.  §  28,  and  cases  cited. 

*<*  Healy  v.  Spence,  8  Exch.  668 ;  Mayor  of  Berwick  v.  Oswald,  1 
El.  &  B.  295;  Kay  v.  Waghorn,  1  Taunt.  428;  Smith  v.  Brown,  3 
Hawks,  580;    Harper  v.   Hampton,    1    Harr.   &  J.   673. 

47 /n  re  Burka,  5  Am.  B.  R.  12;  In  re  Marcus,  5  Am.  B.  R.  19. 


268  HOW  DISCHARGED.  [§  142. 

penalties  for  crimes  and  all  debts  due  the  United  States  or 
State,  so  long  as  the  latter  acts  in  a  sovereign  capacity  are 
not  within  the  statute.*® 

The  effect  is  also  sometimes  limited  by  the  claimant's 
citizenship  or  by  his  relation  to  other  persons  or  business 
entities.  For  example  the  debt  of  an  alien,  whether  a  resi- 
dent or  not  may  be  discharged,  although  the  discharge 
cannot  be  pleaded  in  a  foreign  court.*^  On  the  other  hand 
the  debt  of  an  alien  bankrupt,  which  has  been  discharged 
by  a  decree  of  a  court  of  his  own  country,  may  still  be  sued 
upon  here.^'* 

If  the  bankrupt  is  liable  for  his  wife's  debts,  by  the 
laws  of  his  state,  as  for  necessaries,  his  discharge  will 
release  the  debts.^^  Under  the  former  bankruptcy  statute, 
liabilities  for  torts  were  not  discharged  unless  in  judg- 
ment. When,  however,  the  tort  grows  out  of  a  contract,  the 
weight  of  authority  is  that  it  will  be  discharged,  although 
the  debt  has  not  been  reduced  to  judgment.  But  fraudu- 
lent liabilities  are  not  affected  or  claims  for  obtaining 
goods  by  false  pretenses  or  by  false  representations.^^ 

Under  the  clause  of  the  present  statutes  exempting  from 
discharge  liabilities  for  willful  and  malicious  injuries  to 
the  person  or  property  of  another,  a  judgment  for  aliena- 
tion of  a  husband's  affection,  a  judgment  for  malpractice, 
and  a  judgment  for  libel  have  been  included.^^  Although 
there    is    much    conflict    of    authority    on    the    subject,  the 

*M  U.  S.  Bank  Act  1898,  sec.  17;  In  re  Moore,  6  Am.  B.  R.  590. 

43  Pattison  v.  Wilbur,  10  R.  I.  448. 

^°  Zarega's  Case,  Fed.  Cas.  No.   18,  204. 

^1  Vanderheyden  v.  Mallory,  1   N.  Y.  452. 

52  Ames  V.  Moir,  138  U.  S.  306;  Forsyth  v.  Vehmyer,  177  U.  S. 
177. 

53  Leicester  v.  Hoadley,  9  Am.  B.  R.  379 ;  Re  Flanders,  10  Am. 
B.  R.  379;  McDonald  v.  Brown,  10  Am.  B.  R.  58. 


§  142.]  HOW  DISCHARGED.  269 

weight  of  judicial  opinion  is  that  alimony,  whether  due 
or  not,  is  neither  provable  nor  dischargable.^* 

It  is  to  be  remembered,  however,  that  a  debt  discharged 
is  not  paid.  The  moral  obligation  will  still  constitute  a 
sufficient  consideration  to  support  a  new  promise.^^  An 
oral  promise  will  be  sufficient  unless  a  written  promise  is 
required  by  statute,  but  whether  oral  or  in  writing  the 
promise  must  be  definite,  express,  distinct,  and  unam- 
biguous.^^ A  conditional  ofiFer  of  payment  not  accepted 
by  the  creditor  will  not  suffice  to  revive  a  debt  discharged 
in  bankruptcy.^^ 

4.  Release. — As  ordinarily  used,  the  term  "release"  may 
be  defined  as  the  giving  up  or  surrender,  in  any  manner,  of 
a  claim  or  right.  It  may  be  effected  by  the  vountary 
act  of  the  parties,  intended  as  a  surrender,  or  by  operation 
of  law.^^  A  consideration  is  essential  to  the  validity  of  a 
release  by  the  act  of  the  parties,  and  there  must,  therefore, 
either  be  a  consideration  in  fact,  or  a  seal,  which  imports 
a  consideration,  and,  as  a  general  rule,  estops  a  party  in 
law  from  denying  it.^^  But,  while  the  seal  may  estop  a 
party   in   law    from    denying   a   consideration,   it   does   not 


5'i  Young  V.  Young,  7  Am.  R.  B.  171;  Barclay  v.  Barclay,  184 
111.  375;   Audubon  v.    Schufeldt,   181   U.   S.   575. 

55  Dusenberry   v.    Hoyt,    53    N.   Y.   521. 

-0  Smith  V.  Stanchfield,  7  Am.  B.  R.  498;  Re  Lorillard,  5  Am. 
B.   R.  602. 

^"^  International   Harv.    Co.   v.   Lyman,    10   Am.   B.    R.   450. 

58  2  Bouv.  L.  Diet.  "Release;"  Bishop,  Cont.  (2nd  Enl.  Ed.), 
§  850. 

5»  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  51,  83.  119,  24,  851,  852,  874; 
Harris  v.  Harris,  23  Gratt.  72)7;  Van  Valkenburgh  v.  Smith,  60 
Me.  97;  Sharington  v.  Stratton,  1  Plow.  298,  309;  Page  v.  Tru- 
fant,  2  Mass.  159,  162;  Fallows  v.  Taylor,  7  T.  R.  475;  Cooch  v. 
Goodman.  2  Q.  B.  580;  Burkholder  v.  Plank,  19  Smith  (Pa.),  225; 
Kidder  v.  Kidder,  2)Z  Pa.  St.  268;  Seymour  v.  Minturn,  17  Johns. 
169;   Jackson  v.   Stackhouse,   1    Cow.   122. 


270  HOW  DISCHARGED.  [§  142. 

estop  a  court  of  equity  from  looking  behind  it  for  the  facts, 
and  of  granting  such  relief  as  the  equities  demand.^**  And 
in  some  of  the  States  of  the  Union,  the  want  or  failure  of 
consideration  is  held  to  be  a  good  defense  to  an  action  on 
a  specialty;  the  seal  being  presumptive  evidence  of  con- 
sideration, but  not  conclusive.^^  In  some  other  States  a 
seal  is  rendered  unnecessary  by  statute,  an  unsealed,  being 
made  equally  effectual  with  a  sealed,  instrument.®^ 

As  instances  in  which  a  release  may  be  effected  by  opera- 
tion of  law,  may  be  mentioned  the  case  of  a  release  of  one 
of  two  or  more  promisors  or  obligors,  which  operates  as  a 
discharge  of  all;*'^  a  release  by  one  of  several  joint  prom- 
isees is  effectual  as  against  all  ;***  a  covenant  never  to  sue  f^ 
and  a  bond  or  covenant  to  save  harmless  and  indemnify 
the  debtor  against  his  debt,  is  a  release  of  the  debt."®    And 

6"  Bishop,  Cont.  (2nd  Enl.  Ed.),  §§  120,  121;  Lister  v.  Hodgson, 
Law  Rep.  4  Eq.  30,  36;  Jefiferys  v.  Jefferys,  Craig  &  P.  138;  Kef- 
fer  V.  Grayson,  76  Va.  517;  Logan  v.  Plummer,  70  N.  C.  388;  Haz- 
zard  V.  Irwin,  18  Pick.  95,  106 ;  Obert  v.  Hammel,  3  Harr.  73 ;  lies 
V.  Cox,  83  Ind.  577;  Thorn  v.  Thorn,  51  Mich.  167;  Coranth  v. 
Forsyth,  68  Ga.  560;  Hoydon  v.  Green,  56  Iowa,  733. 

•^1  Pierce  v.  Wright,  33  Tex.  631 ;  Greathouse  v.  Dunlap,  3  Mc- 
Lean, 303 ;  Kinnebrew  v.  Kinnebrew,  35  Ala.  628 ;  Stoval  v.  Bar- 
nett,  4  Litt.  207;  Ring  v.  Kelley,  10  Mo.  App.  411;  Campbell  v. 
Thompkins,  5  Stew.  Ch.  170;  Aller  v.  Aller,  11  Vroom.  446. 

G2  McKinley  v.  Miller,  19  Alich.  142,  151;  McCurtie  v.  Stevens, 
13  Wend.  527. 

e^Lacy  v.  Kinnaston,  3  Salk.  298;  Rex  v.  Bayley,  1  Car.  &  P. 
435 ;  Rewley  v.  Stoddard,  7  Johns.  207 ;  Willings  v.  Consequa, 
Pet.  C.  C.  301;  Campbell  v.  Brown,  20  Ga.  415;  United  States  v. 
Thompson,  Gilp.  614;  Myrick  v.  Dame,  9  Cush.  248. 

«*  Myrick  v.  Dame,  last  cited ;  Wilkins  v.  Lindo,  7  M.  &  W.  81 ; 
Wild  V.  Williams,  6  M.  &  W.  490;  Eastman  v.  Wright,  6  Pick.  316; 
Bruen  v.   Marquand,   17  Johns.  58;   Morse  v.   Bellows,  7  N.   H.  549. 

^^  Cuyler  v.  Cuyler,  2  Johns.  186 ;  Jackson  v.  Stackhouse,  1  Cow. 
122;  Dew  v.  Jeffries,  Cro.  EHz.  352;  White  v.  Dingley,  4  Mass. 
433;   Reed  v.   Shaw,   1   Blackf.  245;  Garnett  v.   Macon,  6  Call,  308. 

s6  Clark  V.    Bush,   3   Cow.    151. 


§  142.]  HOW  DISCHARGED.  271 

generally,  what  ever  may  be  the  form,  or  words,  of  the 
instrument,  it  will  operate  as  a  release,  provided  it  clearly 
manifests  the  purpose  of  the  creditor  to  discharge  the 
debt  and  the  debtor. 

It  was  a  common  law  doctrine  that  an  obligor  could  only 
be  released  by  an  instrument  of  as  high  dignity  as  that  by 
which  he  was  bound,  and  hence,  when  obligated  under  seal, 
he  could  be  released  only  by  a  sealed  instrument.  But  the 
trend  of  modern  authority  is  against  this  doctrine,  it 
being  held  on  high  authority  that  a  sealed  obligation  may 
be  released  by  parol.^^  And  it  has  been  held  that  a  contract 
which  a  statute  requires  to  be  in  writing  may  be  released  by 
parol.''^ 

5.  Rescission. — In  case  of  a  debt  arising  upon  contract, 
the  parties  by  mutual  consent,  may  rescind  the  contract 
and  thus  discharge  the  debt.  It  has  been  held,  however, 
that  in  a  contract  of  sale,  where  the  property  has  passed, 
as  much  formality  will  be  required  to  re-vest  the  title  in 
the  vendor,  as  against  the  vendee's  creditors,  as  was  nec- 
essary to  transfer  the  title  to  the  vendee.*'^  In  case  of  a 
fraudulent  sale,  the  defrauded  party  may,  on  discovery  of 
the  fraud,  rescind  the  contract  and  relieve  himself  from 
all  liability  thereunder,  provided  the  parties  can  be  placed 
in  statu  quo.""^ 


"Bishop,  Cont.  (2nd  Enl.  Ed),  §§  130-137,  852;  Canal  Co.  v. 
Ray,  101   U.  S.  522,  527. 

^^  Gross  V.  Nugent,  5  B.  &  Ad.  58,  65,  66 ;  Cummings  v.  Arnold, 
3  Met.  486;  Stearns  v.  Hall,  9  Cush.  31. 

*9  Quincy  v.  Tilton,  5  Me.  277;  State  of  Maine  v.  Into.xicating 
Liquors,  61  Me.  520 ;  Gleason  v.  Drew,  9  Me.  81 ;  Beecher  v.  May- 
all,  16  Gray,  376. 

^oVoorhies  v.  Earl,  2  Hill,  292;  Lucy  v.  Bundy,  9  N.  H.  278; 
Miner  v.  Bradley,  22  Pick.  457 ;  Coolidge  v.  Brigham,  1  Met.  550 : 
Fullager  v.  Reville,  3  Hun,  600;  Higham  v.  Harris,  108  Ind.  246; 
Prentiss  v.  Russ,   16  Me.  30 ;   Downer  v.   Smith,  32  Vt.   1 ;   Matter- 


272  HOW  DISCHARGED.  [§  142. 

6.  Lapse  of  time. — Discharge  by  lapse  of  time  has  been 
considered  under  the  head  of  "Limitations," "  and  re- 
quires no  further  discussion  in  this  connection. 

7.  Novation. — This  is  briefly  and  comprehensively  de- 
fined by  Bouvier  thus :  "The  substitution  of  a  new  obliga- 
tion of  an  old  one,  which  is  thereby  extinguished."  ^- 

For  the  present  purpose  it  is  only  necessary  to  notice  two 
kinds  of  novation:  First,  when  a  new  debt  takes  the  place 
of  an  old  one,  thus  discharging  it,  the  debtor  and  creditor 
remaining  the  same ;  and,  second,  when  the  debt  remains  the 
same,  but  a  new  debtor  is  substituted  for  the  old,  who  is 
thereby  discharged. 

To  eflFect  a  novation  several  things  are  essential ;  first, 
there  must  be  an  existing  valid  obligation,  else  there  will 
be  nothing  to  extinguish ;  second,  the  parties  innovating 
must  consent  to  the  substitution ;  and,  third,  there  must 
be  an  express  intention  to  innovate.  An  important  con- 
sequence of  the  innovation  is,  that  the  extinction  of  the 
old  debt  destroys  all  the  rights  ad  liens  thereto  pertain- 
ing." 

8.  Former  recovery. — First,  what  is  the  effect  of  a  judg- 
ment, as  res  judicata f  The  doctrine,  stated  generally, 
is,  that  a  judgment  of  a  court  of  competent  authority, 
having  jurisdiction  of  the  subject  matter  and  of  the  parties 
is,  while  unreversed,  conclusive  of  the  questions  in  issue, 

son  V.  Holt,  45  Vt.  336;  Water's  Pat.  Heating  Co.  v.  Smith,  120 
Mass.  444;  Baker  v.  Lever,  67  N.  Y.  304;  Warren  v.  Tyler,  81  111. 
15;  Shaw  v.  Barhart,  17  Ind.  183;  Blen  v.  Bear  River,  etc.,  Co., 
20  Cal.  602;  Pence  v.  Langdon,  99  U.  S.  578;  Street  v.  Blay,  2 
Barn.  &  Ad.  456;  Tiede.  Sales,  §  163. 
''^  Supra,  §§    118,   119. 

"^-2  Bouv.  L.  Diet.  "Novation;"  And.  L.  Diet.  "Novation." 
"Pars.   Cont.    (7th   Ed.),  p.   217,   ct  seq.;   2  Whart.   Cont.   §  852, 
et  scq. 


§  142.]  HOW  DISCHARGED.  273 

as  between  the  parties  and  privies,  whether  privies  in  es- 
tate, in  blood,  or  in  law.^*  From  this  doctrine,  and  princi- 
ples hereinbefore  stated,  it  follows  that  when  a  simple  con- 
tract debt,  or  a  specialty  debt,  is  merged  in  a  judgment, 
the  original  debt  is  extinguished.  The  doctrine  of  res 
judicata  as  now  stated,  is  generally  held  to  apply  to  for- 
eign judgments  in  rem,  with  the  same  force  and  efifect  as  to 
domestics,  but  in  regard  to  foreign  judgments  in  personam, 
the  authorities  are  not  in  full  agreement.''^  The  scope  of 
this  work  will  not  permit  a  discussion  of  this  point. 

Although  dealing  with  contracts,  it  may  be  of  service 
to  the  student  to  notice  in  this  connection  that  a  satisfied 
judgment  in  trover,  not  only  extinguishes  the  plaintiff's 
claim  for  the  injury  sustained,  but  invests  the  defendant 
with  title  to  the  property  wrongfully  converted  by  him.'^® 

It  may  be  stated  generally,  in  conclusion,  that  debts 
may  be  discharged  by  performance  of  the  condition  of 
the  obligation,  whatever  it  may  be,  as  the  payment  in 
full  of  a  money  bond,  or  the  production  of  a  party  in 
court  in  pursuance  of  the  exigency  of  a  recognizance. 


'^^  1  Bouv.  L.  Diet.  "Former  recovery;"  2  Id.  "Res  judicata;"  1 
Greenl.  Ev.  §  522,  et  seq.;  2  Pars.  Cont.  (7  Ed.),  p.  867,  et  seq.; 
Best,  Ev.  pp.  574,  577,  580;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  270; 
Supra,  under  §  141;  Hollister  v.  Abbott,  31  N.  H.  442;  Wall  v. 
Wall,  28  Miss.  409;  Lagranj^e  v.  Ward,  11  Ohio,  257;  Trammell  v. 
Thurmond,  17  Ark.  203;  Hart  v.  Jewett,  11  Iowa,  276;  Vandyke 
V.  Bastedo,  15  N.  J.  L.  224;  Kelly  v.  Mize,  3  Sneed  (Tenn.),  59; 
Pierson  v.  Catlin,  18  Vt.  77;  Martin  v.  Hunter,  1  Wheat.  304; 
Smith  v.   Maryland,  6  Cranch,  286. 

^■'  1   Greenl.   Ev.   §§  541,   546. 

70  Bishop,  Non-Cont.  Law,  §  999 ;  Osterhout  v.  Roberts,  8  Cow. 
43 ;  Foreman  v.  Nelson,  2  Rich.  Eq.  287 ;  Cooper  v.  Shepherd,  3 
C.  B.  266 ;  Chartrau  v.  Schmidt,  Id.  229 ;  Hepburn  v.  Sewell,  5  Har. 
&  J.  211;  Spivey  v.  Morris,  18  Ala.  254;  Smith  v.  Alexander,  4 
Sneed,  482. 
18 


274  MORTGAGES.  [§  144. 


III.  Mortgages. 

§  143.  Definition,  and  essential  elements. — A  chattel 
mortgage  is  the  transfer  of  the  title  to  personal  property 
as  security  for  a  debt  or  obligation,  in  such  form  that  on 
failure  of  the  mortgagor  to  comply  with  the  terms  of  the 
contract,  the  title  of  the  property  will  be  in  the  mort- 
gagee." 

An  analysis  of  the  definition  will  show  the  essential 
elements  of  the  mortgage  question. 

1.  A  transfer  of  title  to  the  chattels  from  the  mortgagor 
to  the  mortgagee. 

2.  It  must  be  intended  as  a  security  for  a  debt  or  obli- 
gation. 

3.  The  transfer  of  title  must  be  upon  the  condition, 
express  or  implied,  that  payment  of  the  debt  when  due 
and  payable,  or  discharge  of  the  obligation,  shall  operate 
as  a  defeasance,  and  re-vest  the  title  in  the  mortgagor. 

4.  That  on  default  of  payment,  or  performance  of  the 
condition,  the  title  shall  become  absolute  in  the  mort- 
gagee. 

§  144.  Formal  requisites. — No  particular  form  of  words 
is  requisite  to  constitute  a  mortgage.  Whatever  be  the 
form  or  language  of  the  instrument,  if  it  shows  an  inten- 

"  Parshall  v.  Eggart,  52  Barb.  367 ;  Porter  v.  Parmly,  42  How. 
Pr.  445;  Thomson  v.  Batie,  11  Neb.  147,  151;  Miner  v.  Judson,  2 
Hun,  441  ;  Mowry  v.  Wood,  12  Wis.  413 ;  Palmer  v.  Shirley,  16 
Ind.  380;  Scott  v.  Henry,  13  Ark.  112;  Ing  v.  Brown,  3  Md.  Ch. 
521 ;  Carpenter  v.  Snelling,  97  Mass.  452 ;  Taber  v.  Hamlin,  97 
Mass.  498;  Smith  v.  Beattie,  31  N.  Y.  542;  Mosley  v.  Crocket.  9 
Rich.  (S.  C),  Eq.  339;  Talbot  v.  DeForest,  3  Iowa,  586;  Flanders 
V.  Barstow,  18  Me.  357 ;  Conner  v.  Carpenter,  28  Vt.  237 ;  Tiedc. 
Sales,  §  221,  ct  seq. 


§  144.  [  MORTGAGES.  275 

tion  of  transferring  title  to  the  goods  as  security,  subject 
to  defeasance,  it  will  constitute  a  chattel  mortgage.'^* 

Parol  chattel  mortgages. — These  are  valid  at  common 
law,  but  to  satisfy  the  Statute  of  Frauds  they  must  be 
in  writing.'^''  And  quite  generally  in  the  States  of  the 
Union  there  are  statutes  providing,  in  effect,  that  as 
against  creditors  and  subsequent  purchasers  and  mort- 
gagees in  good  faith,  chattel  mortgages  shall  not  be  valid 
without  recording  or  filing;  which  provisions,  by  impli- 
cation, require  a  written  instrument.  But  notwithstand- 
ing these  statutes,  parol  mortgages,  as  between  the  par- 
ties, may  be  valid  and  enforceable.^" 

Separate  defeasance. — While  one  instrument  usually  and 
properly  contains  both  the  grant  and  defeasance,  the 
latter  may  be  in  a  separate  instrument  without  aflfecting 
the  validity  of  the  mortgage.  But  it  must  either  be  exe- 
cuted at  the  same  time,  or  subsequently  in  pursuance  of 
an  agreement  made  at  the  same  time,  of  the  transfer  of 
title.  When  thus  executed  the  two  instruments,  in  virtue 
of  an  elementary  principle  of  the  law  of  contracts,  consti- 
tute but  one  in  contemplation  of  law.^^ 

■'^^  Hart  V.  Burton,  7  J.  J.  Marsh.  322;  Farmers',  etc.,  Bank  v. 
Lang,  87  N.  Y.  209;  Fowler  v.  Stoneman,  11  Tex.  478;  Bunacleugh 
V.  Polman,  3  Daly,  236 ;  McKnight  v.  Gordon,  13  Rich.  Eq.  221  ; 
Moore  v.  Murdock,  26  Cal.  514;  Bartels  v.  Harris,  4  Me.  146;  Bar- 
field  V.  Cole,  4  Sneed,  465 ;  Cooper  v.  Brock,  41  Mich.  488 ;  Thomp- 
son V.  Blanchard,  4  N.  Y.  303. 

79  Supra,  §  102. 

80  Bank  of  Rochester  v.  Jones,  4  N.  Y.  497 ;  Flory  v.  Denny,  7 
Exch.  581 ;  Morrow  v.  Turney,  35  Ala.  131 ;  Ceas  v.  Bramley,  18 
Hun,  187,  188;  Couchman  v.  Wright,  8  Neb.  1;  Beeman  v.  Law- 
ton,  37  Me.  543;  May  v.  Estin,  2  Port.  414,  422;  Bardwell  v.  Rob- 
erts, 66  Barb.  433. 

81  Freeman  v.  Baldwin,  13  Ala.  246 ;  Bishop,  Cont.  (2nd  Enl. 
Ed.),  §  165;  2  Pars.  Cont.  p.  503. 


276  SUBJECTS  OF  MORTGAGES.  [§  145. 

Parol  defeasance. — It  is  a  well-established  common-law 
rule,  that  parol  evidence  is  inadmissible  to  vary  or  contra- 
dict a  written  instrtiment.  This  rule  applied,  an  imcondi- 
tional  sale  cannot  be  converted  into  a  conditional  transfer 
by  parol.  But  equity  relaxes  the  strict  legal  rule,  and 
receives  parol  evidence  to  show  that  an  absolute  bill  of  sale 
was  intended  by  the  parties  as  a  mortgage.  Courts  of  law 
have  caught  the  spirit  of  equity  which  "mitigates  the  rigor 
of  the  law  itself,"  and  now  quite  generally  admit  parol 
evidence  for  the  purpose  of  showing  that  a  written  transfer 
of  personal  property,  absolute  on  its  face,  was  in  fact  con- 
ditional, intended  simply  as  a  defeasible  security.*^ 

There  are  cases,  however,  that  adhere  strictly  to  the 
common  law  rule,  and  refuse  to  receive  parol  evidence 
where  the  effect  would  be  to  vary  or  contradict  the  written 
instrument ;  while  other  cases  confine  the  introduction  of 
such  evidence  to  cases  of  fraud,  accident  or  mistake. ^^ 

§  145.  Subjects  of  a  chattel  mortguge. — Stated  gener- 
ally, all  kinds   of  personal  property,   corporeal   and  incor- 

82  Hodges  V.  Tenn.  M.  &  F.  Ins.  Co.,  8  N.  Y.  416 :  Bragleman  v. 
Dane,  69  N.  Y.  69:  Coe  v.  Cassidy,  72  N.  Y.  133,  137;  Farrell  v. 
Bean,  10  Md.  217;  Caswell  v.  Keith,  12  Gray,  351;  Hazzard  v. 
Loring,  10  Cush.  267;  Stokes  v.  Hollis,  43  Ga.  262;  Todd  v.  Hard- 
ing, 5  Ala.  698;  Scott  v.  Henry,  13  Ark.  112;  Hurford  v.  Harned, 
6  Oreg.  362;  Bartel  v.  Lope,  Id.  321;  Lowe  v.  Blair,  72  Ind.  281; 
Wilmerding  v.  Mitchell,  52  N.  J.  L.  476;  Babcock  v.  Wymann,  19 
How.  239 ;  Sprigg  v.  Bank  of  Mt.  Pleasant,  14  Pet.  201 ;  Farmer  v. 
Grose,  42  Cal.  169:  Klock  v.  Walter,  70  III.  416;  Heath  v.  Wil- 
liams, 30  Ind.  495  ;  Zuver  v.  Lyons,  40  Iowa,  570. 

83  Porter  v.  Nelson,  4  N.  H.  130;  Bassett  v.  Bassett,  10  N.  H. 
64;  Boody  v.  Davis,  20  N.  H.  140;  McKinstry  v.  Conly,  12  Ala. 
678;  Sewell  v.  Price,  32  Ala.  97;  Washburn  v.  Merrills,  1  Day, 
139 ;  Whitfield  v.  Gates,  6  Jones,  Eq.  136 ;  Brainerd  v.  Brainerd, 
15  Conn.  575;  CoIHns  v.  Tillon,  26  Conn.  368;  French  v.  Burns, 
35  Conn.  359 ;  Chaires  v.  Brady,  19  Fla.  133. 


§  145.]  SUBJECTS  OF  MORTGAGES.  277 

poreal,  in  possession  or  in  action,  may  be  mortgaged.  A 
party  may  mortgage  anything  in  which  he  has  a  property, 
absolute  or  quaHfied,  and  which  can  be  the  subject  of  an 
absolute  sale.  For  examples :  The  interest  of  a  vendee 
in  the  subject  of  a  conditional  sale,  if  he  be  in  possession  of 
the  goods  ;**  an  owner  of  a  chattel  having  a  general  prop- 
erty therein,  may  mortgage  it,  notwithstanding  another 
party  has  acquired  possession  under  a  special  title,  as  in 
case  of  a  pledge  or  lien;*^  grass  growing,  when  it  is  owned 
by  one  who  does  not  also  own  the  land  f^  a  tenant  in  com- 
mon may  mortgage  his  undivided  share,  subject,  of  course, 
to  the  rights  of  the  other  co-tenants,  whatever  they  may 
be." 

The  relation  of  this  subject  to  fixtures  presents  ques- 
tions of  some  difficulty,  owing  to  the  peculiar  character 
of  this  species  of  property.^^  When  impressed  with  the 
character  of  personal  property,  they  may  be  the  subject 
of  a  chattel  mortgage ;  and  they  will  possess  and  retain 
this  character  while  removable  by  the  tenant,  or  whoever 
annexed  them  to  the  land.^^     And  it  has  been  held,  that  if 

^*  Everett  v.  Hall,  67  Me.  497 ;  Crompton  v.  Pratt,  105  Mass.  255 ; 
Greenway  v.  Fuller,  47  Mich.  557;  Day  v.  Bassett,  102  Mass.  445; 
Holman  v.  Lock,  51  Ala.  287. 

ssprindell  v.  Grooms,  18  B.  Mon.  501;  McCalla  v.  Bullock,  2 
Bibb,  208;  Smith  v.  Coolbaugh,  21  Wis.  427. 

86  Smith  V.  Jenks,  1  Denio,  580,  1  N.  Y.  90. 

87Gaar  v.  Hurd,  92  111.  315;  Smith  v.  Rice,  56  Ala.  417;  Shu- 
art  V.  Taylor,  7  How.  Pr.  251 ;  Powder  v.  Rhea,  32  Ark.  435 ;  Le- 
land  V.  Sprague,  28  Vt.  746;  Thompson  v.  Spittle,  102  Mass.  207; 
Nichol  V.  Stewart,  36  Ark.  612;  Monroe  v.  Hamilton,  6  Ala.  226; 
Smith  V.  Andrews,  49  111.  28 ;  Moline  Wagon  Co.  v.  Rummell,  2 
McCrary,  301. 

88  See  "Fixtures,"  supra,  §  §  9,  10. 

8"  Denham  v.  Sankey,  38  Iowa,  269 ;  Smith  v.  Benson,  1  Hill, 
176;  Goodnow  v.  Allen,  68  Me.  308;  Lamphere  v.  Lowe,  3  Neb. 
131,  134. 


278  SUBJECTS  OF  MORTGAGES.  [§  145. 

a  mortgage  be  given  for  the  purchase  price  of  a  chattel, 
the  thing  will  remain  personal  property,  as  to  the  parties 
to  the  mortgage  and  all  others  having  notice  of  it,  although 
subsequently  annexed  to  the  freehold.®''  It  is  held,  how- 
ever, that  such  a  mortgage  is  not  enforceable  against  sub- 
sequent purchasers  and  mortgagees  of  the  land  without 
notice  of  the  incumbrance  upon  the  fixture.®^  And  some 
of  the  decisions  take  the  ground  that  where  property,  per- 
sonal in  its  nature,  has  become  so  attached  to  the  land  that 
it  cannot  be  removed  without  serious  injury  to  the  free- 
hold, the  chattel  mortgage  upon  it  is  not  enforceable 
against  subsequent  purchasers  or  mortgagees  of  the  land, 
even  though  they  had  actual  notice  of  the  prior  incum- 
brance upon  the  fixture.®^ 

There  has  been  considerable  discussion,  and  some  conflict 
of  judicial  opinion  as  to  whether  the  filing  of  the  mortgage 
will  protect  the  mortgagee  of  fixtures  against  subsequent 
purchasers  or  mortgagees  of  the  real  estate.  The  weight 
of  authority  seems  to  be  that  it  would  not;  that  the  con- 
structive notice  by  filing  will  only  effect  subsequent  pur- 
chasers and  incumbrancers  of  the  fixtures ;  and  that  noth- 
ing short  of  actual  notice  or  knowledge  would  be  sufficient 
as  against  subsequent  purchasers  and  mortgagees  of  the 
land.®'' 


90  Ford  V.  Cobb,  20  N.  Y.  344 ;  Corcoran  v.  Webster,  50  Wis.  125 ; 
Kinsey  v.  Bailey,  9  Hun,  420;  Sisson  v.  Hubbard,  10  Hun,  420; 
Coman  v.  Lakey,  80  N.  Y.  345;  Eaves  v.  Estes,  10  Kan.  314;  Her- 
ryford  v.  Davis,  102  U.  S.  235 ;  Tifft  v.  Horton,  53  N.  Y.  Ill ;  Da- 
vis V.  Bliss,  187  N.  Y.  11. 

91  Coman  v.  Lakey,  80  N.  Y.  345 ;  Voorhees  v.  McGinnis,  48 
N.  Y.  278,  287 ;  Pierce  v.  George,  108  Mass.  78. 

92  See  cases  cited  supra. 

93  Bringhoff  v.  Munzenmaier,  20  Iowa,  513 ;  Richardson  v.  Cope- 
land,  6  Gray,  536;  Ford  v.  Cobb,  20  N.  Y.  344.    And  see  Snowdon 


§  146.]  POSSESSION  BY   MORTGAGOR.  279 

§  146.  Possession  of  the  mortgaged  property. — Upon 
the  execution  and  delivery  of  the  mortgage,  the  mort- 
gagee is  entitled  to  the  immediate  possession  of  the  mort- 
gaged property,  except  where  the  parties  have  expressly 
agreed  that  the  mortgagor  may  retain  possession  until 
default.  On  this  rule  the  authorities  are  in  accord.®* 
The  title  carries  with  it  the  right  of  possession,  and  the 
mortgagee,  in  the  absence  of  an  agreement  that  the  mort- 
gagor may  retain  possession,  can  maintain  an  action  of 
trespass  or  trover  against  any  person,  even  the  mortgagor, 
who  withholds  or  disturbs  his  possession.®^  But  where 
the  right  of  possession  is  reserved  to  the  mortgagor  until 
default,  the  mortgagee  cannot  maintain  an  action  for  the 
conversion  of  the  chattels  while  the  mortgagor's  right  con- 
tinues. The  action  in  such  case  must  be  brought  by  the 
mortgagor,  as  the  right  to  immediate  possession  is  requisite 
to  the  maintenance  of  the  action  of  trover.®^  While  the 
mortgagor  is  legally  in  possession  he  may  bring  action  in 
replevin  or  conversion  against  a  mortgagee  or  his  agents 
for  interfering  with  the  property.®^  On  default  of  the 
V.  Craig,  26  Iowa,  165 ;  Fortman  v.  Geopper,  14  Ohio  St.  558 ;  Bren- 
nan  v.  Whittaker,  15  Ohio  St.  446. 

9*Ramsdell  v.  Tewksbury,  Ti  Me.  197;  Brackett  v.  Bullard,  12 
Met.  308;  Broadhead  v.  McKay,  46  Ind.  595;  Clark  v.  Whittaker, 
18  Conn.  543;  Ellington  v.  Charleston,  51  Ala.  166;  Robinson  v. 
Campbell,  8  Mo.  365;  McGuire  v.  Benoit,  3  Md.  181;  Smith  v. 
Acker,  23  Wend.  654;  Wilson  v.  Brannan,  27  Cal.  258. 

^^  Hathaway  v.  Brayman,  42  N.  Y.  322 ;  Curel  v.  Wunder,  5  Ohio 
St.  92;  Simmons  v.  Jenkins,  76  111.  479;  Calkins  v.  Clement,  54 
Vt.   635;    Hamilton   v.    Mitchell,  6   Blackf.    131;    Shinners   v.    Brill, 

38  Wis.   648;    Tallman   v.   Jones,    13    Kan.    438;    Ford   v.    Ransom, 

39  How.  Pr.  (N.  S.),  416;  Pierce  v.  Hasbrouck,  49  111.  23. 

®®  The  cases  last  cited,  supra;  and  McLeod  v.  Bernhold,  32  Ark. 
671. 

"  Hall  V.  Sampson,  35  N.  Y.  274 ;  Marsden  v.  Cornell,  62  N.  Y. 
215. 


280  DISTINGUISHED  FROM   PLEDGE.  [§  147. 

mortgagor  the  suspended  right  of  possession  vests  in  the 
mortgagee,  and  if  the  goods  are  not  deUvered  on  demand, 
the  law  will  furnish  him  a  remedy  by  action  of  replevin, 
or  trover.^^ 

The  authorities  warrant  the  statement  that  the  mort- 
gagee, by  taking  possession  on  default  of  the  mortgagor, 
acquires  the  right  to  bar  the  mortgagor's  equity  of  re- 
demption by  a  sale  of  the  mortgaged  chattels;  and  this 
without  any  special  grant  in  the  mortgage  of  power  to 
sell,  or  decree  of  court.  The  mortgagor  and  mortgagee 
in  such  case,  it  is  held,  sustain  to  each  other  a  relation 
equivalent  to  that  of  pledgor  and  pledgee,  the  mortgagee 
having,  like  the  pledgee,  a  right  to  sell  after  due  notice 
to  the  mortgagor.®^ 

§  147.  Mortgage  distingnished  from  a  pledge. — We 
have  seen  that  a  conditional  transfer  of  the  title  to  the 
property  is  essential  to  a  chattel  mortgage,  but  no  such 
transfer  takes  place  in  case  of  a  pledge.  If  a  conveyance 
is  taken  as  security  it  is  a  mortgage  or  a  pledge.  If  the 
conveyance  is  intended  as  full  or  part  payment  of  a  debt, 
it  is  a  sale.  The  pledgee  takes  possession  of  the  goods,  and 
acquires  a  special  property  therein,  while  the  general 
property  remains  in  the  pledgor.  Default  of  the  pledgor 
does  not  work  any  change  in  the  title  of  either  party ;  a 

^*  Robinson  v.  Fitch,  26  Ohio  St.  659 ;  Lindeman  v.  Ingham,  36 
Ohio  St.  1,  9;  Bell  v.  Shrieve,  14  111.  462;  Whisler  v.  Roberts,  19 
111.  274;  Burton  v.  Tannehill,  6  Blackf.  470;  Whitney  v.  Lowell, 
33  Me.  318;  Hall  v.  Snowhill,  14  N.  J.  L.  8;  Coty  v.  Barnes,  20 
Vt.  78. 

9^  Charter  v.  Stevens,  3  Denio,  33 ;  Patcline  v.  Pierce,  12  Wend. 
61,  63;  Craig  v.  Tappin,  2  Sandf.  Ch.  78,  90;  Hall  v.  Bellows,  11 
N.  J.  Eq.  333;  Denny  v.  Faulkner,  22  Kan.  89;  Broadhead  v.  Mc- 
Kay, 46  Ind.  595 ;  Wilson  v.  Brannan,  27  Cal.  258 ;  Talman  v. 
Smith,  39  Barb.  390;  Flanders  v.  Chamberlain,  24  Mich.  305;  Lan- 
don  V.  Emmons,  97  Mass.  37. 


§  147.]  DISTINGUISHED  FROM  PLEDGE.  281 

sale  of  the  goods  by  the  pledgee,  on  due  notice  to  the 
pledgor,  being  the  only  way  in  which  he  can  render  the 
security  available  for  its  purpose.  Whereas,  on  default 
of  the  mortgagor,  the  title  to  the  property  becomes,  at 
law,  absolutely  vested  in  the  mortgagee,  no  sale  or  decree 
of  court  being  requisite  to  effect  this  result.  A  pledgor 
may  redeem  by  payment  of  the  debt,  but  a  mortgagee  can 
enforce  redemption  only  by  suit  in  equity.^ 

Another  distinction  between  a  mortgage  and  a  pledge 
is,  that  to  constitute  the  latter,  a  transfer  of  possession 
to  the  pledgee  is  essential;  while  the  retention  of  the  prop- 
erty by  the  mortgagor  does  not  necessarily  affect  the  valid- 
ity of  the  mortgage ;  and  quite  generally  now  a  stipulation 
is  inserted  in  the  mortgage  reserving  to  the  mortgagor  the 
right  of  possession  till  default  in  the  condition.^ 

In  some  of  the  states  there  are  statutory  provisions 
for  recording  or  filing  chattel  mortgages,  and  on  com- 
pliance with  these  provisions  the  mortgagor  may  retain 
possession  of  the  goods  without  endangering  the  security 
of  the  mortgagee.  And  where  such  provisions  do  not  ex- 
ist, it  is  generally  held  that  retention  of  possession  by  the 
mortgagor,  does  not  invalidate  the  mortgage,  except  as 
against  subsequent  bona  fide  purchasers  and  incumbran- 
cers, and  creditors.^ 


1  White  V.  Cole.  24  Wend.  116;  Gifford  v.  Ford,  5  Vt.  532; 
Wright  V.  Ross,  36  Cal.  414;  Walker  v.  Staples,  5  Allen,  34;  Con- 
nor V.  Carpenter,  28  Vt.  237;  Evans  v.  Darlington,  5  Blackf.  320; 
Eastman  v.  Avery,  23  Me.  248;  Heyland  v.  Badger,  35  Cal.  404; 
Doak  v.  Bank  of  the  State,  6  Ired.  (N.  C),  L.  309;  Mowry  v. 
Wood,  12  Wis.  413;  Keller  v.  Paine,  34  Hun  (N.  Y.),  167;  s.  c. 
107  N.  Y.  83 ;  Campbell  v.  Birch,  60  N.  Y.  214. 

2  Parshall  v.  Eggart,  52  Barb.  367 ;  Barsow  v.  Paxton,  5  Johns. 
258;  Bucklin  v.  Thompson,  1  J.  J.  Marsh.  (Ky.)  223;  Letcher  v. 
Norton,  5  111.  575 ;  Hull  v.  Carnley,  2  Duer.  99. 

3  Morrows  v.   Turney,  35  Ala.   131 ;    Hackett  v.   Manlove,    14   CaL 


282  EQUITY   RELIEF   OF    MORTGAGOR.  [§  148. 

§  148.  Equity  relief  of  the  mortgagor. — Hitherto  we 
have  been  considering  chattel  mortgages  under  the  com- 
mon law.  The  discussion  would  be  incomplete  without 
some  notice  of  the  rules  of  equity  applicable  to  this  species 
of  security.  At  law,  on  default  of  the  mortgagor  the  title 
to  the  mortgaged  property  becomes  absolute  in  the  mort- 
gagee;* notwithstanding  his  default  may  have  arisen 
from  accident  or  circumstances  beyond  his  control ;  and 
the  mortgaged  property  may  far  exceed  in  value  the  mort- 
gage debt.  A  tender  of  the  debt  in  full,  with  interest, 
would  be  of  no  avail.  From  the  oppressive  operation  of  this 
rigorous  common  law  rule,  a  court  of  equity  will  relieve 
the  mortgagor,  by  permitting  him  to  redeem,  on  making 
a  legal  tender  of  the  debt,  principal  and  interest,  in  full.^ 
While  the  law  treats  a  chattel  mortgage  as  a  defeasible  sale 
of  the  property,  and  a  transfer  of  the  title,  equity  regards 
it  as  a  lien,  simply,  giving  the  mortgagee  a  special  propy- 
erty  in  the  mortgaged  chattels  by  way  of  security.® 

85 ;  Golden  v.  Cockrill,  1  Kan.  259 ;  Johnson  v.  Jef  ries,  30  Mo. 
423;  Smith  v.  Moore,  11  N.  H.  55;  Winsor  v.  McLellan,  2  Story, 
492. 

*  Supra,  §  143. 

^  Charter  v.  Stevens,  3  Denio,  33 ;  Wylder  v.  Crane,  53  111.  490 ; 
Flanders  v.  Barstow,  18  Me.  357;  Depuy  v.  Gibson,  36  111.  197; 
Smith  V.  Coolbaugh,  21  Wis.  427;  Wilson  v.  Brannan,  27  Cal.  258 
Blodgett  V.  Blodgett,  48  Vt.  32;  Flanders  v.  Chamberlain,  24  Mich. 
305 ;  Bragleman  v.  Dane,  69  N.  Y.  69 ;  West  v.  Crary,  47  N.  Y.  423. 

8  See  cases  last  cited,  supra;  and  Davis  v.  Hubbard,  38  Ala.  185, 
189;  Sidener  v.  Bible,  43  Ind.  230;  Evans  v.  Merriken,  8  Gill  & 
J.  39;  Headley  v.  Goundray,  41  Barb.  282;  Kinna  v.  Smith,  2 
Green.  Ch.  14;  Eaton  v.  W^hiting,  3  Pick.  484;  Anderson  v.  Baum- 
gartner,  27  Mo.  80 ;  Ragland  v.  Justices,  10  Ga.  65 ;  Timms  v. 
Shannon,  19  Md.  296;  Whitney  v.  French,  25  Vt.  663;  Ellison  v. 
Daniels,  11  N.  H.  280;  Deedly  v.  Cadwell,  19  Conn.  218;  Hughes 
V.  Edwards,  9  Wheat.  500. 


§  149.]       DISTINGUISHED  FROM    CONDITIONAL  SALES.  283 

§  149.  Conditional  sales  with  the  right  to  re^purchase, 
distinguished.— We  are  now  prepared  to  distinguish  be- 
tween a  chattel  mortgage  and  a  conditional  sale  with  the 
right  to  re-purchase.  The  features  of  the  two  contracts 
are  so  much  alike,  and  the  inartificial  manner  in  which 
written  instruments  are  often  drawn,  that  in  many  cases 
special  care  is  required  to  distinguished  the  one  from  the 
other.  In  both  there  is  a  conditional  sale  which  passes 
the  title  from  the  vendor  to  the  vendee ;  the  difference  be- 
tween them  being  that  in  case  of  a  sale  with  the  right  to 
re-purchase,  the  right  must  be  exercised,  if  at  all,  within 
the  time  limited  by  the  contract ;  while  in  the  case  of  a 
mortgage  the  right  of  redemption  exists  and  may  be  exer- 
cised after  default  or  condition  broken.  In  short,  the  dis- 
tinguishing feature  is,  the  equity  of  redemption  in  the 
latter  case,  and  the  absence  of  it,  or  its  equivalent,  in  the 
former.  It  is  obviously  quite  desirable  to  have  a  test 
which,  applied  to  a  contract  of  conditional  sale  in  cases  of 
obscurity  and  doubt,  will  determine  whether  it  is  a  mort- 
gage or  a  sale  with  a  right  to  re-purchase.  Such  a  test 
is  found  in  answer  to  the  question :  Was  the  transfer  made 
as  a  security  for  a  debt  or  liability?  If  yea,  it  is  a  mort- 
gage; if  nay,  it  is  not  a  mortgage,  but  a  sale  with  the  right 
of  re-purchase.  The  purpose  of  security,  we  have  seen, 
is  the  very  essence  of  a  mortgage;  and  whatever  the  form 
of  words,  if  the  instrument  manifests  such  intention,  it 
may  safely  pronounced  a  mortgage.^ 


■^  Supra,  §  §  143,  144 ;  and  Robinson  v.  Cropsey,  2  Edw.  Ch.  138 ; 
Woodson  V.  Wallace,  22  Pa.  St.  171 ;  Kelly  v.  Thompson,  7  Watts, 
401 ;  Trucks  v.  Lindsay,  18  Iowa,  505 ;  Page  v.  Foster,  7  N.  H.  392 ; 
Flagg  V.  Mann,  14  Pick.  483;  Pearson  v.  Seay,  35  Ala.  612;  Rice 
V.  Rice,  4  Pick.  349;  Hughes  v.  Sheaff,  19  Iowa,  335;  Heath  v. 
Williams,  30  Ind.  495;  Glover  v.  Payne,  19  Wend.  518;   Cornell  v.. 


284  FORECLOSURE,  ETC.  [§  150. 

§  150.  Foreclosure  of  the  equity  of  redemption. — When 
the  mortgage  contains  a  stipulation  that  the  mortgagee 
may  sell  the  property  on  default  of  the  mortgagor,  as  a 
means  of  satisfying  the  debt;  or  if,  without  such  stipula- 
tion, he  has  possession  of  the  property  after  default,  he 
may  make  an  absolute  sale  of  the  same,  and  thus  bar  the 
mortgagee's  equity  of  redemption.  This  procedure  avoids 
the  necessity  of  the  more  dilatory  and  expensive  foreclosure 
by  bill  in  equity.  In  the  absence  of  statutory  require- 
ments, the  mortgagee  may  sell  the  goods  at  private  sale, 
or  at  public  auction  f  but  the  sale  must  be  conducted  in 
good  faith  and  fairness  towards  the  mortgagor.^ 

In  many  of  the  States  there  are  statutory  provisions 
authorizing  the  foreclosure  of  chattel  mortgages,  and  pre- 
scribing the  procedure ;  and,  in  obedience  to  a  well  settled 
rule,  these  provisions  must  be  substantially  complied  with 
in  order  to  effect  a  regular  and  valid  foreclosure.  This 
rule  applies  to  courts  as  well  as  to  individuals.^** 

Independent  of  statutory  provisions,  however,  a  court 
of  equity  has  power  to  decree  a  foreclosure  of  a  chattel 
mortgage. ^^      And   there    may   be    a    foreclosure   in   equity 

Hall,  22  Mich.  377;  Kearney  v.  McComb,  16  N.  J.  Eq.  189;  Hark- 
ness  V.  Russell,   118  U.  S.  680. 

sWaite  v.  Dennison,  51  111.  319;  Wylder  v.  Crane,  53  111.  490; 
McConnell  v.  People,  84  111.  583. 

9  Hale  V.  Omaha  Nat.  Bank,  64  N.  Y.  550 ;  Robinson  v.  Bloss,  12 
Mass.  428;  Stoddard  v.  Dennison,  38  How.  Pr.  296;  Hall  v.  Dit- 
son,  52  How.  Pr.  19;  Gordon  v.  Clapp,  113  Mass.  355;  Hungate  v. 
Reynolds,   72   111.   425. 

10  Mossman  v.  Forrest,  27  Ind.  233 ;  Cooper  v.  Sunderland,  3 
Iowa,   114. 

"Morris  v.  Tillson,  81  111.  607;  Broadliead  v.  McKay,  46  Ind. 
595;  Brown  v.  Greer,  13  Ga.  285;  Hammers  v.  Dole,  61  111.  307; 
Dupuy  V.  Gibson,  36  111.  197;  Freeman  v.  Freeman,  17  N.  J.  Eq. 
44;  Packard  v.  Kingman,  11  Iowa,  219;  Blakemore  v.  Tabor,  22 
Ind.  446. 


§  151.]  BOTTOMRY,  ETC.,  BONDS.  285 

notwithstanding  a  power  of  sale  is  contained  in  the  mort- 
gage, designed  as  a  substitute  for  an  equity  foreclosure.^^ 


IV.  Bottomry,  and  Respondentia,  Bonds. 

§  151.  Defined  and  explained. — A  bottomry  bond  is  a 
contract  by  which  a  ship  is  hypothecated  as  a  security  for 
money  borrowed  for  its  use,  by  the  owner,  or  the  master  or 
his  agent,  on  maritime  interest. 

It  is  called  a  bottomry  bond  because  the  keel  or  bottom 
is  hypothecated  as  representing  the  whole  ship,  pars  pro 
tota. 

The  term  "hypothecation,"  borrowed  from  the  civil  law, 
is  used  to  distinguish  it  from  a  chattel  mortgage,  from 
which  it  differs,  and  from  a  pledge  in  which  the  possession 
of  the  property  is  given  to  the  pledgee. 

The  term  "maritime  interest"  means  extraordinary  in- 
terest, which  is  allowable  and  paid  on  account  of  the  marine 
risk  assumed  by  the  lender.  The  risk  arises  from  certain 
perils  enumerated  in  the  bond,  it  being  stipulated  therein, 
that  if  the  ship  be  lost  in  the  course  of  the  specified  voy- 
age, or  during  the  time  limited  in  the  contract,  by  any  of 
the  enumerated  perils,  the  lender  shall  lose  his  money, 
principal  and  interest.  Thus  the  lender,  by  assuming  the 
risk,  becomes  a  kind  of  insurer,  and  is  permitted  to  stipu- 
late for  a  premium  in  the  shape  of  extraordinary  interest.^^ 

A  respondentia  contract  or  bond  is  substantially  the  same 

i2Briggs  V.  Oliver,  68  N.  Y.  339;  Rich  v.  Milk,  20  Barb.  616; 
Marx  V.  Davis.  56  Miss.  745  ;  Long  Dock  Co.  v.  Mallory,  12  N.  J. 
Eq.  93. 

13  Abb.  Ship.  (7  Am.  Ed.),  p.  202,  ct  scq.;  2  Bouv.  L.  Diet.  "Bot- 
tomry;" 2  Pars.  Cont.  p.  280,  ct  seq.;  1  Sch.  Pers.  Prop,  p.  559, 
et  scq.;  The  Draco,  2  Summ.  157;  Thorndike  v.  Stone,  11  Pick. 
183;  Bray  v.  Bates,  9  Met.  235. 


286  HYPOTHECATION   OF  THE  SHIP.  [§152. 

as  that  of  bottomry,  except  that  it  hypothecates  the  cargo 
instead  of  the  ship  and  its  tackle.^*  The  two  contracts  may 
be  embraced  in  one  instrument. 

It  will  be  seen  that  the  peculiarity  of  these  bonds  which 
distinguishes  them  from  other  forms  of  security  is,  that 
the  lender  assumes  the  risk  of  certain  perils,  and  takes  the 
chance  of  losing  his  money  with  the  security  in  the  event 
that  the  ship,  or  cargo,  be  lost  by  any  of  the  enumerated 
perils;  but  receives  for  the  use  of  his  money,  and  the  risk 
assumed,  maritime  interest,  in  case  the  ship  or  cargo — 
whichever  be  the  subject  of  the  contract — escapes  loss  or 
injury  from  the  specified  perils. ^^ 

§  152.  Hypothecation  by  the  master,  or  the  owner. — 

The  master  of  a  ship,  from  the  nature  and  circumstances 
of  his  duties  and  responsibilities,  is  clothed  with  extraor- 
dinary powers  as  an  agent,  especially  when  at  sea,  or  in  a 
foreign  port.  He  is  often  compelled  to  decide  and  act  in 
exigencies  involving  the  safety  of  the  vessel  and  cargo,  and 
consequently  the  interest  of  the  owners,  without  an  oppor- 
tunity of  communicating  with  them,  and  receiving  special 
instructions  for  the  emergency.  Among  the  powers  con- 
ceded to,  and  exercised  by  the  master  from  an  early  period 
in  the  history  of  navigation  and  maritime  law,  is  that  of 
hypothecating  the  ship,  or  cargo,  or  both,  on  bottomry  and 
respondentia  bonds.     The  power  may   be  exercised   in   a 

^^2   Bouv.    L.    Diet.    "Respondentia;"    and    authorities    last    supra. 

1^  In  addition  to  cases  cited  last  supra,  see  The  Cognac,  2  Hagg. 
Adm,  387;  Sharpley  v.  Hurrell,  Cro.  Jac.  208;  Simonds  v.  Hodg- 
son, 3  Barn.  &  Adol.  50 ;  Jennings  v.  Ins.  Co.  of  Pa.,  4  Binn.  244 ; 
Greeley  v.  Waterhouse,  19  Me.  9;  Leland  v.  The  Ship  Medora,  2 
Woodb.  &  M.  92;  The  Bray  v.  Bates,  9  Met.  237;  Thorndike  v. 
Stone,  11  Pick.  187;  Rucher  v.  Conyngham,  2  Pet.  Adm.  295;  The 
Mary,  1  Paine,  671 ;  Northwestern  Ins.  Co.  v.  Seward,  36  N.  Y.  139. 


§  153.]  MISCELIvANEOUS  RULES.  287 

foreign  port,  in  the  absence  of  the  owners  or  employers,  for 
the  purpose  of  raising  money  for  repairs  or  equipment,  or 
to  enable  the  ship  to  return  to  her  home  port.  But,  it  must 
be  a  case  of  necessity,  both  as  to  the  money  required,  and 
this  way  of  raising  it;  so  that,  if  the  necessary  amount  of 
money  can  be  obtained  on  the  credit  of  the  owners  or  em- 
ployers of  the  ship,  or  otherwise,  the  master  is  not  author- 
ized to  borrow  it  on  bottomry  or  respondentia.^® 

The  owners,  or  part  owners,  may  hypothecate  the  ship 
by  a  bottomry  contract,  to  the  extent  of  their  respective 
interests.^"  While  in  a  bottomry  contract  by  the  owner 
the  necessity  of  hypothecation  is  not  essential  to  its  valid- 
ity, as  in  case  of  the  master,  it  is  essential  that  the  lender 
should  assume  the  risk,  and  put  his  money  at  hazard,  in 
order  to  constitute  a  bottomry  bond  proper.^*  The  owner 
may,  of  course,  mortgage  or  pledge  his  ship,  as  he  could 
any  other  personal  property,  subject  to  the  common  law 
rules  applicable  to  such  securities. 

§  153.  Miscellaneous. — There  are  some  other  rules  con- 
nected with  this  subject  which  may  be  conveniently   no- 

i«  Story,  Agen.  §  116;  Abb.  Ship.  (7  Am.  Ed.),  p.  203;  2  Pars. 
Cont.  (7  Ed.),  pp.  281,  284;  Putman  v.  The  Polly,  Bee  Arm.  157; 
The  Aurora,  1  Wheat.  96 ;  Hurry  v.  The  John  and  Alice,  1  Wash. 
293;  Walden  v.  Chamberlain,  3  Wash.  290;  Cravv^ford  v.  The  Wil- 
liam Penn.  Id.  484;  Patton  v.  The  Randolph,  Gilp.  457;  Kleim- 
worth  V.  Marrittinia.  2  App.  Cas.  156 ;  The  Fortitude,  3  Sumn. 
246;  The  Ship  Packet,  3  Mason,  255;  The  Royal  Stuart,  33  Eng. 
L.  &  Eq.  602;  2  Pars.  Ship  23;  Gager  v.  Babcock,  48  N.  Y.  154. 

17  The  Duke  of  Bedford,  2  Hagg.  Adm.  294 ;  The  Mary,  1  Paine, 
671;  The  Draco,  2  Sumn.  157;  The  Hilarity,  Blatchf.  &  H.  Adm. 
90;  Miller  v.  The  Rebecca,  Bee  Arm.  151;  Thorndike  v.  Stone,  11 
Pick.   183;   Greeley  v.  Waterhouse,   19  Me.  9. 

18  See  The  Jane,  1  Dod.  466 ;  The  Emancipation,  1  Wm.  Rob. 
129 ;  The  Lord  Cochrane,  2  Wm.  Rob.  320 ;  The  Hunter,  Ware,  341 ; 
The  Brig  Atlantic,  1  Newb.  Arm.  514. 


288  MISCEI^IvANEOUS  RULES.  [§  153. 

ticed  in  passing,  without  special  regard  to  logical  arrange- 
ment. 

1.  "The  contract  of  hypothecation  made  by  the  master 
does  not  transfer  the  property  of  the  ship,  but  only  gives 
the  creditor  a  privilege  or  claim  upon  it,  to  be  carried  into 
effect  by  legal  process. "^^ 

2.  The  owner  is  not  personally  bound  by  a  bottomry  bond 
executed  by  the  master ;  the  personal  remedy  of  the  lender 
being  against  the  master,  unless  the  bond  provides  for  his 
exemption  from  personal  liability.-" 

3.  A  bottomry  bond  takes  precedence  as  a  security  to 
every  other  claim  for  the  voyage  on  which  it  is  founded, 
except  the  claim  for  seaman's  wages,  which  are  sacred  "as 
long  as  a  single  plank  of  the  ship  remains."^^ 

If  the  lender  on  bottomry  discharges  the  wages  due  to 
the  crew,  he  will  be  entitled  to  the  same  priority  and  lien 
on  the  proceeds  of  the  ship,  which  they  would  have,^- 

4.  The  bottomry  bond  does  not  vest  in  the  lender  any 
absolute  indelible  interest  in  the  ship ;  hence,  as  against 
subsequent  purchasers  or  creditors  it  must  be  enforced 
within  a  reasonable  time,  or  yield  to  their  superior  equities. 
So,  also,  as  to  judgment  creditors;  if,  for  example,  the 
bottomry  holder  permits  the  ship  to  make  several  voyages 
without  assertina:  his  lien  and  in  the  mean  time  other  cred- 


it Johnson  V.  Shippin,  2  Ld.  Raym.  984;  Blaine  v.  Ship  Charles 
Carter,  4  Cranch,  328;  United  States  v.  Delaware  Ins.  Co.,  4  Wash. 
C.    C.  418. 

20  The  Nelson,  1  Hagg.  169,  176;  Stainbank  v.  Fanning,  6  Eng. 
L.  &  Eq.  412;   The  Virgin,  8  Pet.  538. 

21  The  Sidney  Cove,  2  Dod.  1,  13 ;  The  Madonna  D'Idra,  1  Dod. 
40 ;  Blaine  v.  The  Ship  Charles  Carter,  4  Cranch,  328 ;  The  Mary 
Ann,  9  Jur.  95 ;  The  Constancia,   10  Jur.  850. 

22  The  Kammerheive  v.  Rosencratz,  1  Hagg,  Adm.  62 ;  The  Vir- 
gin, 8  Pet.  583. 


§  153.]  MISCELI.ANEOUS  RULES.  289 

itors   levy  executions   upon  the   ship,   the  holder  will   lose 
his  lien.^^ 

5.  On  the  arrival  of  the  ship  in  the  home  port,  if  the  loan 
be  not  paid  according  to  its  terms,  the  bottomry  holder 
has  his  remedy  in  the  Court  of  Admiralty,  by  a  proceed- 
ing in  rem.  On  the  proper  application  to  the  Court  under 
the  procedure  in  Admiralty,  the  ship  v^^ill  be  seized  and 
held  to  await  the  adjudication  of  the  claims  of  the  several 
parties  interested,  who  will  be  cited  to  appear  before  the 
Court,  if  they  wish  to  be  heard.  The  Court  has  power  to 
decree  a  sale  of  the  ship,  if  necessary,  which  will  be  con- 
ducted by  the  Marshal  of  the  District,  or  other  proper 
officer,  and  the  proceeds  brought  into  court  for  distribution 
among  the  claimants,  as  justice  and  equity  may  require."* 

6.  It  should  be  mentioned  in  this  connection  that  a  bot- 
tomry bond  may  be  sustained  as  to  some  of  the  claims  for 
which  it  was  given,  and  held  invalid  as  to  others ;  in  other 
words,  it  may  be  good  in  part,  and  bad  in  part.-^ 

7.  While,  as  a  rule,  the  maritime  interest  may  be  what 
the  parties  agree  uf>on,  the  Court  has  power  to  reduce  it, 
and  will  do  so  if,  under  all  the  circumstances,  the  rate  be 
oppressive  and  unjustifiable.  In  the  exercise  of  this 
power,  however,  the  Court  will  act  with  caution,  and,  in 
the  absence  of  fraud,  will  disturb  the  agreement  of  the 
parties  only  in  extreme  cases  and  in  obedience  to  the  im- 
perative demands  of  justice  and  equity. ^"^ 

23  Blaine  v.  The  Ship  Charles  Carter,  4  Cranch,  328 ;  Leland  v. 
Medora,  2  Woodb.  &  M.  92,  105;  Packard  v.  Louisa,  Id.  49;  The 
Chusan,  2  Story,  C.  C.  468 ;  The  Brig  Nestor,  1  Sumn.  85. 

2-' Abb.    Ship.    (7   Am.    Ed.),   p.   223. 

2''  The  Aurora,  1  Wheat.  96 ;  The  Packet,  3  Mason,  255 ;  The  Tar- 
tar, 1   Hagg.   1;   The  Nelson,   Id.   169;  The  Hero,  2  Dod.   139. 

26  The  Zodiac,  1  Hagg.  320,  326;  The  Ysabel,  1  Dod.  273;  The 
Augusta,  Id.  283 ;  The  Packet,  3  Mason,  255 ;  Wilmer  v.  The  Smi- 
lax,  2  Pet  Adm.  295. 

19 


290  RENT.  [§154. 

V.  Rent. 

§  154.  Definition  and  properties. — Mr.  Washburn  de- 
fines as  "a  right  to  the  periodical  receipt  of  money  or 
money's  worth  in  respect  of  lands,  which  are  held  in  pos- 
session, reversion  or  remainder,  by  him  from  whom  the 
payment  is  due."^^  In  Bouvier's  Law  Dictionary  we  find 
the  following  definition :  "A  return  or  compensation  for 
the  possession  of  some  corporeal  inheritance,  and  is  a  cer- 
tain profit,  either  in  money,  provisions,  or  labor,  issuing 
out  of  the  lands  and  tenements,  in  return  for  their  use."^* 
Careful  attention  to  these  definitions  will  show  that  the 
principal  and  characteristic  properties  of  rent  are,  a  profit 
to  the  proprietor  of  lands  or  tenements,  certain  in  its  char- 
acter or  capable  of  being  reduced  to  a  certainty,  issuing 
periodically  out  of  the  subject  of  the  demise  to  or  posses- 
sion of  the  party  from  whom  payment  is  due,  which  must 
be  corporeal  in  its  nature.  The  proprietor  is  called  the 
landlord,  the  other  party,  the  tenant,  and  the  profit  or 
compensation  for  the  use  of  the  premises,  the  rent.^^  Rent 
cannot  issue  out  of  a  mere  privilege  or  easement.^** 

It  is  not  essential  to  rent  that  the  profit  or  compensation 
for  the  use  of  the  land  should  be  in  money ;  it  may  be  wheat, 
com,  or  other  produce  of  the  land,  fowls,  or,  indeed,  any 
other  personal  property;  so,  also,  it  may  consist  in  services 
or  manual  operations,  rendered  by  the  tenant  to  the  land- 
lord.^^ 


27Washb.  Read  Prop.  272. 

28  2  Bouv.  L.  Diet.  "Rent;"  And.  L.  Diet.  "Rent." 

29  3  Kent.  Com.  p.  460;  2  Bouv.  L.  Diet.  "Rent;"  Tayl.  Land,  and 
Ten.  §  369,  et  seq;  Tiede.  Real  Prop.  §  §  641-646. 

30  3  Kent.  Com.  p.  461;  2  Blaek.  Com.  p.  41;  Gilb.  Rents,  9;  Buz- 
zard V.  Caped,  8  Bru.  &  C.  141. 

31  Authorities  cited  supra,  under   this   section. 


§  155.]  KINDS  OF  RENT.  291 

§  155.  The  kinds  of  rent. — At  common  law  there  are 
three  kinds  of  rent,  known,  respectively,  as  rent  service, 
rent  charge,  and  rent  seek. 

Rent  sermce,  as  its  name  indicates,  is  that  in  which  cor- 
poral service  is  rendered  in  return  or  as  a  compensation 
for  the  use  of  the  land ;  and  this  kind  is  annexed  to  and 
connected  with  a  reversionary  estate  remaining  in  the 
grantor. 

Rent  charge,  is  where  the  owner  of  the  rent  has  no  fu- 
ture interest  in  the  land,  but  in  his  grant  reserves  to  himself 
a  rent,  with  a  clause  authorizing  its  collection  by  distress. 

Rent  seek — reditus  siccus — is  simply  a  rent  reserved  by 
deed,  without  the  distress  clause,  and  which  can  only  be 
collected  by  an  ordinary  action  at  law. 

There  is  another  species  of  rent  mentioned  in  the  books, 
called  a  fee-farm  rent,  which  is,  in  fact,  a  rent-charge 
issuing  out  of  an  estate  granted  in  fee.  It  is,  therefore, 
omitted  in  the  foregoing  classification.^^ 

The  design  and  scope  of  this  work  will  not  justify  a 
full  discussion  of  these  different  species  of  rent,  with  the 
rules  applicable  to  each.  And,  indeed,  such  discussion 
would  be  of  little  benefit,  by  reason  of  the  changes  in  the 
common  law,  both  in  England  and  in  the  United  States. 
The  difference  between  them,  so  far  as  the  remedy  for 
their  recovery  is  concerned,  has  been  abolished  in  Eng- 
land^^  and  generally  in  this  country,  distress  for  rent  be- 
ing authorized  if  payment  is  not  made  or  rendered  when 
due.  In  some  of  the  States  of  the  Union,  however,  distress 
for  rent  has  been  abolished  by  statute  in  all  cases. 

The  subject  of  rent  is  introduced  and  will  be  treated, 

32  Authorities,  supra,  under  this  section. 
334  Geo.  II,  c.  28. 


292  REMEDY    BY   DISTRESS.  [§  156. 

mainly,  in  its  character  as  a  chose  in  action,  which  justifies 
its  discussion  in  a  treatise  on  Personal  Property. 


§  156.  Remedy  by  distress. — This  is  an  ancient  and  effi- 
cient remedy  for  the  collection  of  rent,  when  available 
for  that  purpose.  At  common  law,  as  we  have  seen,^*  this 
remedy  does  not  exist  in  case  of  rent-seek,  but  it  has  been 
extended  by  statute  to  all  kinds  of  rent,  and  is  now  avail- 
able to  the  landlord  in  most,  if  not  all,  of  the  States  of  the 
Union,  except  those  in  which  distress  for  rent  has  been 
abolished  by  statute. 

Originally,  distress  as  a  remedy  extended  to  other 
cases  than  rent  is  arrear,  as,  for  example,  the  case  of  cattle 
of  a  stranger  found  by  the  owner  of  lands  on  his  premises, 
damage  feasant.  The  owner  might  distrain  the  cattle 
as  a  pledge  until  he  received  satisfaction  for  the  injury 
sustained  by  the  trespass. ^^  In  the  case  of  rent  in  arrear, 
the  landlord  might  seize  any  personal  chattels  found  on 
the  demised  premises  as  a  pledge  for  the  payment  of  the 
over-due  rent.  In  both  cases,  and  others  in  which  distress 
was  allowable,  the  distraining  party  was  bound  to  hold  the 
pledge  until  the  other  party,  as  pledgor,  saw  fit  to  redeem 
it.  If  the  other  party  offered  pledges  for  the  satisfaction 
of  the  injury,  or  the  performance  of  his  duty,  and  the 
landlord  should  persist  in  holding  the  chatties  distrained, 
the  owner  thereof  might  recover  them  by  writ  of  replevin.^® 

The  ancient  common  law  rule,  and  practice,  have  been 
so  far  changed,  that  distress  now  consists  of  a  summary 
seizure  and  sale  of  the  property  subject  to  distress,  to  ob- 
tain satisfaction  for  the  injury,  or  payment  of  the  claim. 

^^  Supra,  §   155. 

2^  3   Black.    Com.    p.    7. 

^6  Tayl.   Land,  and  Ten.   §  557 ;   Black.   Com.   pp.   6,   7,  and  note. 


§  156.]  REMEDY    BY   DISTRESS.  293 

To  the  existence  of  the  right  of  distress,  and  for  its 
exercise,  there  are  several  essential  elements  and  rules  de- 
manding attention. 

1.  There  must  be  an  actual  demise,  at  a  certain  fixed 
rent,  or  an  amount  that  may  be  reduced  to  a  certainty  by 
calculation.^^ 

2.  The  relation  of  landlord  and  tenant  must  be  fully 
completed,  and  not  merely  in  contemplation;  an  agreement 
for  a  lease  will  not  suffice;  but  the  relation  once  estab- 
lished, the  right  of  distraining  being  incident  thereto,  the 
landlord  can  oly  be  deprived  of  it  by  a  termination  of 
the  tenancy.^^  A  parol  lease  will  be  sufficient  to  create  the 
relation  and  authorize  a  distress.^^ 

3.  An  unsatisfied  judgment  for  the  rent,  does  not,  at 
common  law,  extinguish  the  right  of  distress.*"  A  prom- 
issory note,  given  and  accepted  for  rent,  will  not  defeat 
the  right  of  distress,  unless  upon  agreement  of  the  parties 
to  the  effect  that  it  shall  so  operate,  or  it  be  taken  in  ab- 
solute payment.*^  A  surrender  of  part  of  the  premises 
will  not  bar  a  distress  as  to  the  residue.*-  But  it  has  been 
held,  that  if  the  landlord  has  treated  his  tenant  as  a  tres- 

37  Dunk.  V.  Hunter,  3  Barn.  &  Adol.  332 ;  Valentine  v.  Jackson, 
9  Wend.  322;  Grier  v.  Cowan,  Addis.  347;  Reeves  v.  MsKenzie,  1 
Bailey,  500;  Moulton  v.  Norton,  5  Barb.  286;  Jackson  v.  Smith,  1 
Bay,  315;  Smith  v.  Colson,  10  Johns.  91;  Smith  v.  Fyler,  2  Hill, 
648. 

38  Schuyler  v.  Leggett,  2  Cow.  660;  Jack  v.  Smith,  1  Bay,  315; 
Hegan  v.  Johnson,  2  Taunt.   148;    Knight  v.    Bennett,  3   Bing.   361. 

39  Citations  last  supra,  and  Cornell  v.  Lamb,  2  Cow.  652. 

*''  Snyder  v.  Kunckleman,  3  Penn.  490 ;  Chipman  v.  Martin,  13 
Johns.  240;  Bautleton  v.  Smith,  2  Binn.  146;  Bates  v.  Nellis,  5 
Hill,  651. 

■*!  Peters  v.  Newkirk,  6  Cow.  103 ;  Snyder  v.  Knuckleman,  3 
Penn.  487;  Harris  v.  Shipway,  Bull.  N.  P.  182;  Davis  v.  Fyde,  4 
Nev.  &  M.  462;  Bailey  v.  Wright,  3  McCord,  484;  Warren  v.  Tor- 
ney,  13  Serg.  &  R.  52. 


294  REMEDY   BY  DISTRESS.  [§  156. 

passer  he  cannot  lawfully  distrain,  even  though  the  latter 
remains  in  possession  down  to  the  day  of  the  distress.*^ 

4.  The  right  of  distress  is  canceled  by  a  legal  tender  of 
the  amount  due,  although  not  made  until  after  the  rent- 
day  ;  or  even  not  till  after  the  commencement  of  distress  pro- 
ceedings, provided  the  tender  includes  the  expenses  of 
such  proceedings.**  But  it  is  too  late  after  cattle  are 
actually  impounded,  because  they  are  then  in  custody  of 
the  law.*^ 

5.  Any  one  of  several  joint  tenants  may  distrain  for 
the  whole  rent,  and  may  appoint  an  agent  to  do  so  without 
the  assent  of  his  co-tenants.*^  But  co-parcenors,  before 
partition,  must  all  join  in  the  proceedings;  after  partition 
they  may  severally  distrain.*'  Tenants  in  common  must 
distrain  severally.*^ 

At  common  law,  the  landlord  could  only  distrain  during 
the  continuance  of  the  term,  as  a  privity  of  estate  between 
the  tenant  and  the  distrainor  was  essential  to  the  right  of 
distress.  By  statute  in  England,*^  the  rule  was  so  changed 
that  the  distress  could  be  made  at  any  time  within  six 
months  next  following  the  determination  of  the  lease,  pro- 
vided the  landlord's  title  or   interest   still  continued,  and 

42  Peters  v.  Newkirk,  6  Cow.  103. 

*3  Bridges  v.  Smyth,  2  Moore  &  P.  740 ;  Jackson  v  Sheldon,  6 
Cow.  103. 

**  Williams  v.  Howard,  3  Munf .  277 ;  Hunter  v.  Loconte,  6  Cow. 
728;  Six  Carpenters'  Case,  8  Rep.  I46b;  Hunter  v.  Blain,  2  Bailey, 
168 ;  Virtue  v.  Beasly,  2  Mood.  &  M.  21. 

*6Ladd  V.   Thomas,    12  Ad.   &   El.    117. 

46  Pullen  V.  Palmer,  3  Salk.  207 ;  Robinson  v.  Hoffman,  4  Bing. 
562;  Bearinger  v.  O'Hare,  26  Iowa,  359. 

"  Steadman  v.  Page,  1   Salk.  390 ;   Co.   Lit.  163b. 

48  Whitley  v.  Roberts,  1  McClel.  &  Y.  107;  Harrison  v.  Barnsby, 
5  Term  R.  246. 

«8  Anne,  c.   14. 


§  156.]  REMEDY    BY    DISTRESS.  295 

the  tenant  remained  in  possession.  The  statute,  in  sub- 
stance, has  quite  generally  been  adopted  in  the  United 
States.^"  There  are,  also,  various  statutory  provisions  on 
the  subject  of  distress  in  the  several  States  of  the  Union, 
v^hich  must  be  consulted  by  the  practitioner  when  neces- 
sary. 

7.  As  a  distress  can  only  be  taken  for  rent  in  arrear,  the 
landlord  cannot  legally  make  the  seizure  until  the  day  fol- 
lowing that  on  which  it  is  payable,  the  tenant  having  until 
the  last  minute  of  that  day  to  make  payment,  and  will  not 
therefore,  be  in  default  until  the  following  day.^^  At  com- 
mon law,  a  distress  for  rent  cannot  be  made  in  the  night, 
but  must  be  a  work  of  the  day,  between  sunrise  and  sun- 
set.^- 

8.  In  making  a  distress,  if  there  be  several  articles  in  the 
house  subject  thereto,  the  landlord  may  seize  upon  any  one 
in  the  name  of  all,  with  the  declaration  that  none  shall  be 
removed  until  his  rent  is  paid,  and  this,  it  is  held,  will  au- 
thorize him  to  follow  an  article  thereafter  removed  with- 
out his  consent.^^  The  landlord,  for  the  purpose  of  making 
a  distress,  may  enter  into  any  building  through  the  doors 
and  windows  which  are  unfastened,  but  if  fastened,  he 
cannot  lawfully   break  them  open.      If,   however,   an   en- 

^0  Terboss  v.  Williams,  5  Cow.  407 ;  Christman  v.  Floyd,  9  Wend. 
340;  Burne  v.  Richardson,  4  Taunt.  720;  Buckup  v.  Valentine,  19 
Wend.  554;  Bell  v.  Potter,  6  Hill,  497;  Weller  v.  Shearman,  2 
Denio,  362. 

BiGano  V.  Hart,  Hardin  (Ky.),  297;  Duppa  v.  Mayo,  1  Saun. 
287;  Evan  v.  Herring,  27  N.  J.  L.  243. 

52  Co.  Litt.  142a;  Gilb.  Distr.  SO;  Attenbergh  v.  People,  Car,  & 
P.  212;  Tutton  v.  Darke,  5  Hurl,  &  N.  654;  Sherman  v.  Duch,  16 
111.  283;  Fry  v.  Breckinridge,  7  B.  Mon.  31. 

^3  Wood  V.  Munn,  5  Bing.  10 ;  see  Hutchinson  v.  Scott,  2  Mees.  & 
W.   809. 


296  REMEDY   BY   DISTRESS.  [§  156. 

trance  be  gained  through  an  open  outer  door,  an  inner  may 
be  broken  for  the  lawful  purpose  in  view.^* 

9.  It  is  the  general  common  law  rule,  that  all  the  mov- 
able goods  and  chattels  found  on  the  premises  may  be 
taken  upon  a  distress  for  rent,  whether  they  belong  to  the 
tenant,  under-tenant,  or  some  other  person. ^^  To  this  gen- 
eral rule,  however,  there  are  various  exceptions,  both  at 
common  law  and  by  statute,  but  the  exceptions  are  not  uni- 
form in  number  or  character  in  all  the  states  of  the  Union. 
It  would  not  be  profitable  to  notice  them  in  detail  here, 
did  the  limitations  of  the  work  permit,  as  the  practitioner 
will  necessarily  acquaint  himself  with  the  peculiar  laws 
of  his  own  state  on  the  subject.^*^ 

10.  The  goods  and  chattels  distrained  must  be  safely 
and  properly  kept,  the  tenant  duly  notified  of  the  seizure, 
and  then,  after  the  expiration  of  the  time  prescribed  by 
law,  if  due  notice  of  the  time  and  place  of  the  sale  has  been 
given,  and  the  chattels  have  not  been  redeemed,  the  land- 
lord may  sell  them  at  public  auction,  or  sufficient  of  them 
to  pay  the  rent  in  arrear,  together  with  interest  and  cost 
of  distress  proceedings.  The  place  and  mode  of  keeping 
the  distrained  property,  the  notice  of  seizure  to,  and  day  of 
grace  for,  the  tenant,  the  notice  and  manner  of  sale,  and 
other  particulars  connected  with  the  proceedings,  have 
varied  in  the  course  of  time,  and  are  not  at  present  uni- 

5M  Rol.  Abr.  671,  1,  7,  17;  Co.  Litt.  161a;  Semayn's  Case,  5  Co. 
R.  91 ;  Williams  v.  Spencer,  4  Johns.  352 ;  State  v.  Thackaw,  1 
Bay,  358 ;  State  v.  Armfield,  2  Hawks.  246. 

5^  Spencer  v.  McGown,  13  Wend.  256 ;  Holt  v.  Johnson,  14  Johns. 
425 ;  Kesler  v.  McConachy,  1  Rawle,  435 ;  O  Donnel  v.  Seybert,  13 
Serg.  &  R.  57 ;  Howard  v.  Rawsay,  7  Harr.  &  J.  120 ;  Davis  v. 
Payne,  4  Rand.  334;  Reeves  v.  McKenzie,  1  Bailey,  497;  Blanch  v. 
Bradford,  38    Pa.    St.   344;    Stevens   v.    Lodge,    7    Blackf.    594. 

56  See  3  Kent,  Com.  pp.  476-479. 


§  157.]  OTHER   REMEDIES.  297 

form  throughout  the  Union.  But  the  aim  of  legislation, 
and  of  the  administration  of  the  law,  is,  to  afford  the  land- 
lord a  summary,  efficient  remedy  for  the  collection  of  his 
rent,  and  at  the  same  time  to  protect  the  tenant  from  in- 
justice and  oppression.  On  seizing  the  goods  and  chattels 
of  the  tenant,  the  distrainor  is  quite  generally  and  very 
properly  required  to  give  notice  to  the  former  of  the  dis- 
tress, with  an  inventory  of  the  articles  taken,  and  a  state- 
ment of  his  claim  for  rent,  thus  affording  him  an  oppor- 
tunity of  redeeming  his  chattels  by  paying  the  rent  and 
costs,  or  of  intelligently  declining  so  to  do  for  what  he  may 
deem  sufficient  reasons.  Five  days  are  usually  allowed  by 
law  for  redemption,  and  five  days  previous  notice  of  the 
time  and  place  of  sale  required,  but  as  already  stated,  the 
rules  governing  the  proceedings  are  not  uniform.^^ 

There  are  some  minor  incidental  rules  connected  with 
this  topic,  the  discussion  of  which  is  necessarily  omitted, 
but  to  these  the  attention  of  the  reader  will  be  directed  by 
a  study  of  the  rules  and  principles  set  forth  in  this  sec- 
tion, and  the  authorities  cited. 

§  157.  Reniiedies  by  actions  at  law,  and  a  suit  in 
equity. — For  rent  in  arrear  the  landlord  has  a  remedy  by 
action  of  debt,  covenant,  and  assumpsit,  and  in  some  cases 
by  a  suit  in  equity. 

1.  Action  of  debt. — At  common  law  an  action  of  debt  is, 
in  most  cases,  the  appropriate  remedy.  It  is  called  by  this 
name  because  it  is  brought  for  the  recovery  of  debt,  eo 
nomine  and  in  numero.  It  the  common  law  classification 
of  actions,  the  term  debt  implies  a  liquidated  or  certain 
sum  of  money  due.^^ 

"  Tayl.  Land,  and  Ten.  §  §  605-614 ;  3  Kent,  Com.  p.  480. 
ssSteph.  PI.   (9  Am.  Ed.),  p.  14;  Chit.  PI.   (7  Am.  Ed.),  p.  123. 


298  OTHER  REMEDIES.  [§  157. 

While  damages  are  generally  awarded  for  tlie  detention 
of  the  debt,  they  are  in  most  cases  only  nominal,  and  not 
the  principal  object  of  the  action,  as  in  covenant  and  as- 
sumpsit.^^ 

By  this  action  all  kinds  of  rent,  certain  in  amount,  are 
recoverable,  whether  the  demise  be  by  deed  or  by  parol; 
and  whether  payable  in  money,  or  produce  of  the  land  re- 
served by  the  lease.  If  payable  in  money,  the  plaintiff 
will  recover  the  debt,  and  interest  on  it  from  the  time  it 
became  due  and  payable ;  if  payable  in  produce,  he  will 
recover  its  value,  and  interest  thereon  from  the  stipulated 
time  of  dehvery."*' 

As  this  action  is  founded  on  the  privity  of  contract  an- 
nexed to  the  person  in  respect  to  the  estate,  and  follows  it 
when  the  estate  is  transferred,  the  remedy  passes  with  it. 
Hence,  if  the  lessor  grants  his  reversion,  the  remedy  fol- 
lows to  the  grantee,  and  if  he  assigns  it  the  remedy  passes 
to  the  assignee.^^ 

2.  Action  of  covenant. — This  action  lies  for  the  recovery 
of  damages  for  the  breach  of  a  covenant  or  contract  under 
seal,  whether  express  or  implied,  and  whether  contained 
in  a  deed  poll  or  indenture.®-  It  is  the  peculiar  remedy 
for  the  breach  of  covenant  when  the  damages  are  unUqui- 
dated,  depending  upon  the  opinion  of  a  jury.®^  But  it  is, 
in    most    cases,    a    concurrent   remedy    with    the    action  of 

^^  Tayl.  Land,  and  Ten.  §  615 ;  3  Kent,  Com.  p.  472 ;  McKeon  v. 
Whitney,  3  Denio,  452. 

«o  Denny  v.  Parnell,  1  Rol.  Abr.  591,  L.  28;  Cheney's  Case,  3 
Leon.  260;  Ven  Rensselaer's  Ex'rs  v.  Jewett,  5  Denio,  135. 

81  Walker's  Case,  3  Rep.  22b,-  Humble  v.  Oliver,  Cro.  Eliz.  328; 
Rowland  v.   Coffin,   12  Pick.   125. 

«2  1  Chitt.  PI.  (7  Am.  Ed.),  p.  131;  Steph.  PI.  (9  Am.  Ed.),  p. 
16;   Tayl.  Land,  and  Ten.   §  661;   Gale  v.   Nixon,  6   Cow.  445. 

63  Richards  v.  Killam,  10  Mass.  243,  247;  Smith  v.  Stewart,  6 
Johns.  48. 


§  157.]  OTHER  REMEDIES.  299 

debt.®*  But  there  are  some  exceptions ;  as,  for  example, 
where  there  has  been  an  eviction  from  part  of  the  land, 
the  action  of  covenant  will  not  lie  against  the  lessee,  be- 
cause his  hability  arises  on  his  personal  covenant,  which 
cannot  be  apportioned;  nor  can  a  person  not  a  party  or 
privy  to  the  deed  maintain  an  action  of  covenant,  except 
where  the  common  law  rule  has  been  changed  by  statute."^ 
It  lies  only  in  favor  of  a  person  who  is  a  party  to  the  cove- 
nant, and  in  the  name  of  the  covenantee,  who  holds  the 
legal  interest;  not  in  tlie  name  of  a  person  only  beneficially 
interested;  nor  can  such  person  be  joined  in  the  action.®® 

3.  Action  of  assumpsit. — The  action  of  assumpsit  gives 
still  another  remedy.  This  action  lies  for  a  breach  of  a 
simple  contract,  that  is  a  contract  not  under  seal,  whether 
parol  or  written.  It  may  be  either  express  or  implied. 
Where  there  is  no  express  promise,  the  law  imphes  a  prom- 
ise to  do  that  which  a  party  is,  in  justice,  bound  to  per- 
form ;  in  other  words,  if  the  party  makes  no  promise  for 
himself  in  such  case,  the  law  makes  it  for  him  by  imputa- 
tion.®^ A  landlord  may  recover  in  this  action  a  reasonable 
satisfaction  for  the  use  and  occupation  of  his  lands  and 
tenements  under  any  agreement,  express  or  implied,  not 
imder  seal.  The  recovery  is  not  for  rent,  technically,  as 
in  the  action  of  debt,  but  an  equivalent  therefor,  namely, 
a  reasonable  compensation  for  the  use  and  occupation  of 

**  March  v.  Freeman,  3  Lev.  383 ;  Byron  v.  Johnson,  8  Term  R. 
410;    Hartshorne    v.    Watson,    5    Scott,    506. 

«5Tayl.  Land,  and  Ten.  §  662. 

«6  Jenkins  v.  Norton,  3  B.  Mon.  (Ky.),  28;  Wolf  v.  Washburn. 
6  Cow.  201;  Strohecker  v.  Grant,  18  Serg.  &  R.  237;  Lord  South- 
ampton V.  Brown,  6  Barn.  &  C.  718;  Howe  v.  Howe,  1  N.  H.  49; 
Berkly  v.   Hardy,  5   Barn.  &  C.  355. 

e^Steph.  PL  (9  Am.  Ed.),  p.  19;  1  Chit.  PI.  (7  Am.  Ed.),  pp. 
112,  113;  Bishop,  Cont.  (2nd  Enl.  Ed.),  §  184,  2  Black.  Com.  p. 
443. 


300  OBLIGATION   TO  PAY  RENT,   ETC.  [§  158. 

the  premises.  If  the  compensation  is  fixed  by  agreement, 
it  will  govern  the  measure  of  damages;  if  not,  the  damages 
must  be  determined  by  proofs  aliunde. 

4.  A  suit  in  equity. — There  are  cases  in  which  the  law 
fails  to  furnish  the  landlord  an  adequate  remedy,  and  in 
such  cases  it  is  the  province  of  equity  to  grant  relief.^® 

In  some  of  our  states,  it  should  be  observed,  the  powers 
and  functions  of  law  and  equity  are  blended  in  one  tri- 
bunal. The  essential  distinction,  however,  between  law  and 
equity  is  not,  as  many  suppose,  obliterated,  but,  simply^ 
the  two  departments  of  jurisprudence  are  administered  by 
one  and  the  same  court,  instead  of  two  distinct  and  inde- 
pendent tribunals.  Law  is  still  law,  and  equity  is  equity, 
as  of  old,  each  with  its  peculiar  principles  and  rules  of  ad- 
ministration. 

§  158.  Obligation  to  pay  rent;  eviction  a  defense. — 
Where  the  relation  of  landlord  and  tenant  exists,  whether 
created  by  specialty  or  simple  contract,  the  tenant  is  under 
obligation  to  pay  rent,  even  without  an  express  covenant 
in  the  lease  to  that  effect.  In  the  absence  of  an  express 
covenant,  the  law  will,  as  we  have  seen,'°  supply  an  im- 
plied promise  to  pay,  which  is  equally  binding  upon  the 
tenant.  At  common  law,  under  an  express  covenant  to 
pay  rent,  the  obligation  of  the  tenant  will  continue  for  the 
term,  although  the  tenement,  in  the  meantime,  be  destroyed 
by  fire  or  other  external  violence,  unless  the  lease  other- 
wise provides. '^^     The  tendency  in  modern  times  has  been 

68Tayl.  Land,  and  Ten.  §  635,  et  seq.;  1  Chit.  PI.  (7  Am.  Ed.), 
pp.  112,  120,  et  seq.  377. 

«9See  1  Story,  Eq.  Jur.  §§  684-687;  1  Pom.  Eq.  Jur.  §  189;  Tay- 
lor, Land,  and  Ten.  §  §  656-660. 

''^  Supra,  §   157,  sub.  3;  and  see  Tayl.   Land,  and  Ten.  §  371. 

^1  Gates   V.    Green,   4   Paige,  535 ;    Hollzapffel   v.    Baker,    18   Ves.. 


§  158.]  OBUGATION   TO   PAY  RENT,  ETC,  301 

to  a  relaxation  of  this  severe  rule,  and  in  some  of  our  states 
it  has  been  changed  by  statute,  relieving  the  tenant  from 
payment  of  rent  thereafter,  on  destruction  of  the  tenement, 
until  the  premises  are  restored  to  a  tenantable  condition. 
Nevertheless,  prudence  suggests  the  insertion  of  a  provi- 
sion in  the  lease  for  the  protection  of  the  tenant  in  such 
a  contingency. 

The  obligation  of  the  tenant  to  pay  rent  is  upon  the  im- 
plied condition  that  he  shall  have  the  peaceable  and  quiet 
possession  and  enjoyment  of  the  demised  premises,  with- 
out disturbance  or  eviction  by  the  landlord,  and  if  sued 
for  the  rent,  the  landlord's  breach  of  this  covenant  will 
constitute  a  good  defense.  An  eviction  by  the  landlord 
from  part  of  the  premises  will  release  the  tenant  from  ob- 
ligation to  pay  rent,  even  on  the  part  retained  by  him,  the 
contract,  and  the  consideration,  being  each  a  unit,  and  in- 
divisible by  the  wrongful  act  of  the  landlord." 

Eviction  from  the  whole  of  the  demised  premises  by  the 
lawful  act  of  a  third  person,  has  the  same  effect  upon  the 
obligation  of  the  tenant  as  an  eviction  by  the  landlord,  but 
not  so  where  the  eviction  by  a  third  party  is  from  a  part, 
only,  of  the  premises,  in  which  case  the  rent  will  be  appor- 
tioned, and  the  tenant  obliged  to  pay  for  the  portion  en- 
joyed by  him.^'* 

415;  Lamott  v.  Stenet,  1  Harr.  &  J.  42;  Philips  v.  Stevens,  16 
Mass.  240;  Howard  v.  Doolittle,  3  Duer,  464;  Willard  v.  Tillman, 
19  Wend.  358;  3  Kent,  Com.  p.  465,  et  seq.;  Gibson  v.  Perry,  29 
Mo.  245 ;  White  v.  Molyneux,  2  Ga.  124. 

"  Tayl.  Land,  and  Ten.  §  §  378,  379 ;  3  Kent,  Com.  pp.  464,  465 ; 
Pendleton  v.  Dyett,  4  Cow.  581 ;  8  Cow.  727 ;  Hope  v.  Eddington, 
Lalor,  43;  Ogilvie  v.  Hull,  5  Hill,  52;  Crommelin  v.  Thiess,  31 
Ala.  412;  Jackson  v.  Eddy,  12  Mo.  209;  Day  v.  Watson,  8  Mich. 
535. 

■^3  Hegeman  v.  McArthur,  1  E.  D.  Smith,  147 ;  Christopher  v. 
Austin,    11    N.   Y.  216;   Vermilyea  v.  Austin,  2  E.   D.   Smith,  203; 


302  APPORTIONMENT  OF   RENT.  [§  159. 

Actual  physical  expulsion  is  not  necessary  to  produce  an 
eviction.  The  tenant  is  entitled  to  the  quiet,  peaceful,  and 
beneficial  enjoyment  of  the  premises,  without  molestation 
or  annoyance  from  the  landlord,  either  directly  or  indi- 
rectly, and  acts  by  the  latter  which  deprive  the  tenant  of 
such  enjoyment  of  the  premises  will,  in  contemplation  of 
law,  amount  to  an  eviction.  For  example,  using,  or  per- 
mitting the  use  of  an  apartment  connected  with  the  de- 
mised premises,  as  a  place  of  resort  for  lewd  women,  there- 
by producing  nocturnal  noise  and  disturbance,  has  been 
held  an  eviction.'^* 

The  eviction,  to  constitute  a  valid  defense  to  an  action 
for  rent,  must  have  taken  place  before  the  rent  fell  due. 
It  will  not,  therefore,  bar  a  recovery  for  rent  already  due.'^^ 

§  159.  Apportionment  of  rent. — It  is  a  rule  of  the  com- 
mon law,  that  a  unit  of  indebtedness,  or  obligation,  cannot 
be  divided  into  fractions,  or  "split  up"  as  it  is  generally 
expressed,  and  enforced  by  action  in  separate  parts,  there- 
by subjecting  the  debtor  to  the  trouble  and  expense  of  sev- 
eral suits  for  the  one  original  cause  of  action.  The  case 
of  rent  forms  an  exception  to  this  rule,  being  in  some  in- 
stances subject  to  apportionment.'"'  A  few  examples  will 
suffice  for  the  present  purpose.  As  rent  is  an  incident  to 
the  reversion,  whenever  that  is  severed,  either  by  act  of 

Carter  v.  Burr,  39  Barb.  59;  Blair  v.  Claxton,  18  N.  Y.  529;  Tiley 
V.  Moyers,  43  Pa.  St.  404 ;  Stevenson  v.  Lambard,  2  East,  576 ; 
Hunt  V.  Cope,  Cowper,  242;  Lawrence  v.  French,  25  Wend.  443; 
Ludwell  V.  Newman,  6  Tenn.  458. 

^•*  Pendleton  v.  Dyett,  4  Cow.  58 ;  Cohen  v.  Dupont,  1   Sandf .  260. 

■^2  Giles  V.  Comstock,  4  N.  Y.  270 ;  Kesler  v.  McConachy,  1  Rawle, 
335 ;  Boynton  v.  Bobbitt,  2  Vent.  68 ;  Stokes  v.  Cooper,  4  Camp. 
514;   Whitney  v.  Myers,   1   Duer,  267. 

76  3  Kent,   Com.   pp.  469-471;   Tayl.   Land,   and   Ten.  §§   383-385. 


§  159.]  APPORTIONMENT   OF  RENT.  303 

the  parties  or  by  operation  of  law,  the  rent  will  follow  the 
reversion,  and  become  payable  to  the  assignees  or  owners 
of  the  respective  portions  thereof. ^^  Whenever  there  is  a 
severance  by  act  of  law,  there  will  be  an  apportionment  of 
the  rent;  as  upon  a  descent  of  the  reversion  among  heirs, 
or  a  judicial  sale  of  part  of  the  demised  premises,  the  ten- 
ants will  be  bound  to  pay  rent  to  the  heirs  or  purchasers, 
respectively,  for  the  portion  of  the  premises  belonging  to 
each.^^  In  case  a  lessor,  being  owner  of  the  fee,  dies  after 
rent  becomes  due,  it  is  payable  to  his  executors  or  adminis- 
trators, and  not  to  the  heir  at  law,  but  if  he  dies  before 
the  rent  accrues,  it  belongs  to  the  heir,  and  not  to  his  ex- 
ecutors or  administrators.''''  Where  the  rent  is  payable  at 
stated  periods  during  the  term,  as  quarterly  or  monthly, 
the  portion  due  and  unpaid  at  the  lessor's  death,  having, 
by  severance  from  the  reversion,  become  a  chose  in  action, 
falls  into  his  personal  estate,  and  hence  is  payable  to  his 
executor  or  administrator,  while  the  portion  not  yet  due 
remains  an  incident  to  the  reversion,  and  passes  with  it  to 
the  heir. 


There  are  other  species  of  personal  property,  but  none 
possessing   peculiarities   that   require    special   treatment,   as 


''"'  NelHs  V.  Lothrop,  22  Wend.  121 ;  Van  Rensselaer  v.  Jones, 
2  Barb.  643 ;  Van  Rensselaer's  Ex'rs  v.  Gallup,  3  Denio,  454 ;  Cuth- 
bert  V.  Kuhn,  3  Whart,  366;  Farley  v.  Craig,  6  Halst.  262;  McEl- 
lery  v.  Flannagan,  1  Har.  &  G.  308;  Van  Rensselaer  v.  Bradley,  3 
Denio,  135 ;  3  Kent,  Com.  p.  376. 

''^  Cole  V.  Patterson,  25  Wend.  456 ;  Walter  v.  Flint,  Cro.  Eliz. 
742;  Linton  v.  Hart,  25  Pa.  St.  193;  Crosby  v.  Loop,  13  111.  625. 

''^  Cole  V.  Patterson,  supra,  and  Duppa  v.  Mayo,  1  Saund,  R. 
287;  Barwick  v.  Foster,  Cro.  Jac.  227;  Norris  v.  Harrison,  2  Mad. 
Ch.  R.  268;  Gheen  v.  Osborn,  17  Serg.  &  R.  171;  Ex  parte  Smyth, 
1   Swanst.  338. 


304  APPORTIONMENT   OF   RENT.  [§  159. 

they  present  no  serious  difficulties,  and  none  that  may  not 
be  readily  solved  by  an  intelligent  application  of  the  prin- 
ciples and  rules  developed  and  illustrated  on  the  foregoing 
pages. 

There  only  remains  for  consideration  in  this  treatise, 
the  devolution  of  personal  property  on  the  death  of  its 
owner,  which  is  the  subject  of  the  next,  and  last,  chapter. 


§  160.]  GENERAL  RULES.  305 


CHAPTER  XV. 

DEVOLUTION  OF  PERSONAL  PROPERTY  ON  DEATH 
OF  OWNER. 

§  160.  General  rules. 

§  160.  General  rules. — The  owner  of  property,  both  real 
and  personal,  when  not  under  disability,  may,  by  last  will 
and  testament,  determine  its  disposition  after  his  death.^ 
Dying  intestate,  his  real  estate  descends  directly  to  his 
heirs,  and  his  personal  property,  after  payment  of  debts 
and  expenses  of  administration,  passes  indirectly  to  his 
next  of  kin.  Who  constitute  heirs,  and  the  order  of  inheri- 
tance, is  determined  by  statutes,  called  statutes  of  descent; 
the  next  of  kin,  and  rules  of  distribution,  are  also  pre- 
scribed by  statutes,  called  statutes  of  distribution.  These 
statutes  are  generally  based  upon  the  English  statutes  of 
distribution,^  and  which  Mr.  Kent  says  were  borrowed 
from  the  118th  novel  of  Justinian.^  But,  while  the  Ameri- 
can statutes  are  based  on  the  English,  there  are  some  points 
of  difference  between  them,  and  although  the  statutes  in 
the  several  states  of  the  Union  are  alike  in  general  char- 
acter and  policy,  there  are  differences  among  them  more 
or  less  marked.  It  is,  therefore,  impracticable  to  state  the 
rules  of  distribution  applicable  to  all  parts  of  our  national 
domain,  without  a  special  examination  of  the  local  laws  of 
each  state,  which  the  character  and  scope  of  this  work  will 

1  Supra,  §  §  90-95. 

2  22  and  23  Charles   II,  ch.   10. 

3  See  2  Kent,  Com.  p.  420,  et  seq.;  1  Bouv.  L.  Diet.  "Distribu- 
tion;" 1  Sch.  Pefs.  Prop.  pp.  747-750;  Williams,  Pers.  Prop.  pp. 
361-368;  Goodeve  Pers.  Prop.  p.  285,  et  seq. 

20 


306  GENERAL  RULES.  [§  160. 

not  permit.  It  may  be  assumed  that  the  practitioner  will 
be  familiar  with  the  general  principles  of  law  on  the  sub- 
ject, and  he  will  consult  the  local  statutes  when  necessary 
for  guidance  in  matters  under  consideration.* 

This  brief  chapter  closes  the  discussion,  in  outline,  of  the 
Law  of  Personal  Property.  In  taking  leave  of  the  subject, 
and  of  his  readers,  the  writer  would  fain  indulge  the  hope 
that  his  earnest  desire  to  present  this  important  branch  of 
the  law  in  a  helpful  manner  will  not  be  regarded  by  his 
professional  brethren  as  a  failure. 

4  2  Kent,  Com.   p.  422. 


INDEX 

[References   are   to   pages.] 

A. 

ABATEMENT, 

of  legacies 231, 232 

ABSOLUTE, 

property,  absolute  and  qualified 2 

and  conditional  legacies 229, 232 

ABSENCE, 

of  defendant  from  the  State  extends  the  time  for  com- 
mencing action  against  him 201 

ACCESSION, 

defined     60 

title  to  fruits  of  the  earth  by 61 

title  to  increase  of  animals  by 61,  62 

materials  of  one  person  luiited  to  those  of  another 62, 63 

ACCEPTANCE  (see  Sales), 

oflfer  and  acceptance 135, 137, 138 

under  the  Statute  of  Frauds 145-147 

the  complement  of  delivery  on  sales 175, 176 

ACCORD  AND  SATISFACTION  (see  Debts), 

defined ;  discharge  of  debts  by 266,  267 

ACCOUNT, 

rendition  of  by  violator  of  trade-mark  compelled 96, 97 

ACKNOWLEDGMENT, 

of  debt  barred  by  statute  of  limitations 202-204 

ACTION, 

by  vendor  of  personal  property 188,  189 

by  vendee  of  personal  property 189-194 

by  landlord  for  rent  in  arrear 297, 299 

ADEMPTION, 

of    legacies    explained 232, 233 


308  INDEX. 

[References    are   to  pjiges.] 

ADMINISTRATORS   (see  Intestacy), 

history  and  incidents  of  the   law  of  intestacy,  and  ad- 
ministration       105-108 

powers  and  duties  of  administrator 107 

liability  of  decedent's  subscription  for  stock 250,251 

ADMIRALTY  (see  Bottomry,  and  Respondentia,  Bonds), 

remedy  for  holder  of  these  bonds  in  court  of 288 

AGENT, 

each  partner  the  agent  of  all 35 

ALIEN  ENEMIES, 

property   of    liable   to   seizure   and   confiscation   in   time 
of    war    52 

testamentary  incapacity  of 125 

ALLODIAL    (see   Estate,  Real   and   Personal), 

difference  between  allodial  and  feudal  tenure 25 

AMBULATORY  (see  Fixtures— Wills), 

fixtures    sometimes    real,   and   sometimes    personal   prop- 
erty     7 

wills    are    ambulatory 130 

ANIMALS, 

ferce  natures,  reclamation  of 58,  59 

title  acquired  by  reclaimant 59 

dividing  line  between  wild,  and  tame 58,  59 

title  to  increase  of  animals  by  accession 61,  62 

APPROPRIATION    (see  Payment), 

of  payments   184 

on  sale  of  goods  not  specific 157 

property  acquired  by 50 

APPORTIONMENT, 

of  rent  302, 303 

ARBITRATION, 

provision  for  in  contract  of  insurance 220,  221 

ASSENT  (see  Sales). 

ASSETS, 

of  a  corporation,  on  dissolution,  a  trust  fund 251,  252 

ASSIGNMENT, 

as    to    authority   of    one    partner    to    assign    partnership 
property   27 


INDEX.  309 

[References    are    to   j)ages.] 

ASSIGNMENT— ConhMwed. 

of  corporate  stock  by  the  owner 42 

gift  of  chose  in  action  by  assignment 118 

equitable  assignments    118 

ASSUMPSIT, 

action  of   for  rent  in  arrear 299 

B. 

BAILMENT, 

defined  and  explained 196,  197 

general  property  in  bailor,  special  in  bailee 197 

BANK  NOTES, 

lost  or  stolen,  bona  fide  holder  of  protected 55,  56 

BANKRUPTCY  (see  Insolvency). 

BARGAIN  AND  SALE  (see  Sales). 

BEQUEST, 

meaning  and  use  of  the  term 126 

BOTTOMRY,  AND  RESPONDENTIA,  BONDS, 

defined  and  explained 285,  286 

meaning  of   the   terms    "hypothecation,"    and    "maritime 
interest"    285 

hypothecation  by  the  master,  or  owner 286 

does  not  transfer  property  of  ship 288 

owner    not    personally    bound    by    a    bond    executed    by 
the  master    288 

the   bond  takes   precedence   as    security  to   every   other 
claim   for  the  voyage  except   seamen's  wages 288 

as    against    creditors    the    bond    must    be    enforced    with- 
in a  reasonable  time 288 

remedy    of    holder    in    Admiralty,    by    a    proceeding    in 
rem    289 

the  court  has    power   to   reduce   the   stipulated   rate   of 

interest  289 

BURIAL  RIGHTS  (see  Mortuary  Property). 

c. 

CALLS   (see  Stock  and  Stockholders). 
CAPITAL  STOCK  (see  Stock  and  Stockholders). 


3:10  INDEX. 

[References    are    to   pages.] 

CAPTURE, 

title  to  goods  captured  in  war 51 

in  whom,  or  where,  the  title  vests 52,  53 

in   marine   captures    the    property,    and    legality    of    the 

seizure,  determined  by  a  prize  court 52 

property  of  alien  enemies  subject  to  seizure 52,  53 

right  of  seizure  and  confiscation  not  the  same  upon 
land  as  in  naval  warfare 53 

CHATTELS, 

definition,  and  derivation,  of   "chattel" 22, 23 

real,  and  personal,  defined  and  distinguished 22,  23 

wife's  transferred  to  husband  by  marriage 113 

CHECK, 

payment  by  182 

CHOSES,  IN  POSSESSION,  IN  ACTION, 

origin  and  meaning  of  the  word  "chose" 23 

in  possession,  and  in  action,  what  are 23,  24 

wife's  transferred  to  husband  by  marriage 113,  114 

CHURCH  FURNITURE, 

sometimes   personal,   and   sometimes   real,  property;    the 

law    governing    18, 19 

rights  of  a  pew-holder 19 

bells,  organs,  furnaces,  stoves  and  pipes,  may  become 
real  property  or  fixtures 20 

COMMERCIAL  PAPER, 

warranty  in  the  sale  of 172 

lost  or  stolen,  when  indorsed  in  blank,  or  payable  or 
indorsed  to  bearer,  not  recoverable  by  the  owner 
from   a   bona   fide   purchaser 56,57 

•COMMON  CARRIER, 

effect  of  delivery  to,  on  sale  of  goods 174 

CONDITIONS  (see  Sales— Insurance), 

the  several  kinds,  and  effects,  in  contracts  of  sale 167,168 

CONGRESS, 

power  to  create  corporations 39 

to  grant  patents,  and  copyrights 67,  68 

to  establish  uniform  laws  on  the  "subject  of  bankruptcies 
throughout  the   United  States" 111,112 


INDEX.  311 

[References    are    to   pages.] 

CONFUSION  OF  GOODS  (see  Accession). 

CONSIDERATION, 

how  failure  of  affects  contracts  of  sale 158,  159 

effect  of  illegal  consideration 159 

new,  unnecessary  to  validate  new  promise 204,  205 

CONSTITUTIONAL  (see  Money). 

CONTRACT, 

executory,    and    executed 133 

transfer  of  title  by 152, 157 

power  of,  possessed  by  corporations 40, 41 

power  of  joint-stock  companies  to  contract 44,  45 

authority  of  partners  to  bind  co-partners  by 36,  37 

contract  with  alien  enemies  invalid 53 

between  the  state  and  a  patentee 67,  68 

implied  contract  of  auditors  not  to  violate  lecturer's  right 

of  property  in  his  lecture 88 

whether  judgments  are  contracts 102, 103 

insurance   contracts    207, 209 

subscription   for  stock  a  contract 242 

illegal  contracts  of  sale 166,  167 

CONTRIBUTION, 

between  co-shareholders   when  one  is  compelled  to  pay 

a  debt  of  the  company 249 

COPYRIGHT, 

defined 76 

nature,  and  source,  of  the  right 76-78 

how  to  secure  the  statutory  right 78-81 

essentials  to  a  valid  copyright 81-84 

merit,   or    value,   essential 82 

seditious,  or  libellous,  publications,  outlaws 83 

immoral   productions   not   protected 83 

blasphemous   publications  under   legal   condemnation....  83.84 

remedies    for    infringement 84 

CORPORATIONS, 

defined,  and  how  created 38 

Congress,    and    the    State    legislatures,    each    power    to 

create   corporations    39 

classification    of    39 


312  INDEX. 

[References    are    to   pages.] 

CORPORATIONS— Continued. 

act  through  their  officers,  and  other  agents 39 

the  officers,   in  a  sense,   superior   to  their   principal....  40 

power  of   contract  substantially  the  same  as  that  of   a 

natural    person    41, 42 

interest    of     individual     corporators    in     the    corporate 

property     41 

what  the  term  stock,  in  its  full  import,  embraces 41 

owner  of   stock  may  assign   it,   and  what   the   assignee 
takes     42 

CORPSE  (see  Mortuary  Property), 

quasi  property  in,  conferring  upon  relatives  the  right  of 

custody    and    control 20,  21 

to  whom  the  right,  and  place,  of  burial  belongs 20,  21 

CORRUPTION  OF  BLOOD   (see  Forfeiture), 

provisions  in  relation  to,  in  the  Federal  Constitution,  and 
Act   of    Congress 99 

CREDITS  (see  Goods,  Wares,  Merchandise,  Etc.). 

CREDITORS   (see  Debtor  and  Creditor), 

contracts   in    fraud   of,   voidable 165,166 

gifts  prejudicial  to  the  rights  of,  invalid 118 

rights  of,  as  against  corporations,  and  stockholders....  241-246 

COVENANT, 

action  of,  for  rent  in  arrear 298, 299 

COUNTERFEIT, 

payment  in  counterfeit  bills  not  good 182,  183 

COVERTURE, 

as    effecting    testamentary    capacity 128 

D. 

DAMAGES, 

an  essential  element  in  an  actionable  fraud 163 

vendee,  in  some  cases,  entitled  to  special 191 

DEBTS  (see  Debtor  and  Creditor), 

definition,    and   classification,   of 258, 259 

a  debt  of  record  defined 259,  260 

judgment  roll  of  a  court  of  record,  authority  of 260,  261 

distinction    between   courts    of    general,    and    of    special 
jurisdiction    260, 261 


INDEX.  313 

[References   are   to   pages.] 

DEBTS — Continued. 

judgment  impeachable  for  want  of  jurisdiction,  or   for 

fraud    261, 262 

respecting  impeachment  of  foreign  judgments 261,264 

effect  of  foreign  judgments  as  res  judicata 264 

debts  by  recognizance 264 

specialty  debts  explained 265 

what  are  simple  contract  debts 265, 266 

how    debts    are    discharged 266, 267 

by  payment 180-184 

as  to  payment  in  Legal  Tender  notes 255,  266 

by  accord  and  satisfaction 266, 267 

by    bankruptcy    108-1 12 

release  by  act  of  the  parties,  or  by  operation  of  law. . . .  269-271 

by  rescission  of  contract 271 

by  lapse  of  time 198, 199 

by  novation  ;  what  it  is 272 

by    former    recovery 272, 273 

action  of  debt  for  rent 297, 298 

debt  from  donor  to  donee  subject  of  a  gift  to  the  lat- 
ter      117 

DEBTOR  AND  CREDITOR  (see  Insolvency— Debts), 
question    of    fixtures    between    them    and    the    heir    or 

vendee,    and    the    widow 10 

gifts  prejudical  to  creditors   invalid 118-120 

stockholder's    liability    to    creditors 241-245 

assets  of  a  corporation,  on  dissolution,  constitute  a  trust 

fund  for  the  benefit  of  creditors 251,  252 

sale  of  goods  in  fraud  of  creditors,  invalid 165, 166 

ownership    of    property    subject    to    the   just    claims    of 

creditors    4 

DEFEASANCE   (see  Mortgages). 

DELIVERY, 

essential  to  a  gift 117-120 

different  kinds  of  delivery 117-176 

delivery  under  the  Statute  of  Frauds 145-146 

in  respect  to  a  transfer  of  title 154 

effect  of  delivery  to  common  carrier 155-177 


314  INDEX. 

[References    are    to   pages.] 

DELIVERY— Cotitmucd. 

in  performance  of  the  contract  of  sale 172-176 

how,  and  where,  delivery  to  be  made 173 

delivery   of   insurance    policy 212,213 

DEVISE, 

testamentary  disposition  of  real  estate 126 

DEVOLUTION, 

of  personal  property  on  death  of  the  owner 305,  306 

DISCHARGE  (see  Debts). 

DISTRIBUTIVE  SHARES, 

defined  and  explained 235, 236 

DISTRESS  (see  Rent), 

remedy  of  landlord  for  rent  in  arrear 292, 297, 298 

DONOR,   AND    DONEE    (see   Gifts    Inter   Vivos,   and 
Causa  Mortis). 

DOUBLE  INSURANCE   (see  Insurance). 

E. 
EASEMENT, 

grant   of    burial   lot   in   a   churchyard,   or    public    ceme- 
tery, generally  an  easement 20 

EMBLEMENTS, 

defined,  and  doctrine  of,  stated 12 

what  products  the  tenant  may  remove 12,  13 

who,  and  when,  entitled  to 13-15 

incidents   of    15 

EMINENT  DOMAIN, 

power  of  the  State  to  take  private  property  for  public 
use;  a  limitation  of  absolute  worship 4 

ESTATE, 

derivation,  and  meaning,  of  the  word 24,  25 

properly  applicable  to  real  property  only,  but  frequently 
applied  to   personal,  and  sometimes  both  to  real  and 

personal    property    25, 26 

the    feudal   tenure   prevails   in    England;    in    the   United 

States,  lands  are  allodial;   the  difference  explained...       25.26 


INDEX.  315 

[References   are   to   pages.] 

ESTATE — Continued. 

when   "estate"   is  applied  to   personal   property,   it   may 

represent  an  absolute,  or  qualified,  interest 25,26 

real  estate  of   a  partnership,   on  dissolution,  treated  as 

personalty  and  part  of  the  assets 251 

EFFECTS  (see  Goods,  Wares,  Merchandise,  Etc.). 

EXECUTOR  (see  Title  by  Will  or  Testament), 

question    of    fixtures    between    executor    and    heir,    de- 
visees, executor  of  tenant  for  life,  and  remainder  man 

or  reversioner    10 

succeeds    to    decedent's     liability    on     subscription     for 
stock  250,  251 

EXECUTION. 

interest  of  an  owner  in  common  subject  to 32, 33 

and  so  of  a  partner's  in  the  common  property 37, 38 

money  subject  to  levy  under  execution 257,258 

EQUITY, 

enforces    equitable    assignments 118 

upholds  gifts  between  husband  and  wife 120 

furnishes  remedy  for  infringement  of  trade-marks 96, 97 

remedy  in,   for  infringement  of  copyright 84,85 

restrains   violation   of    author's   right   in   lectures 89 

remedy  in,  for  infringement  of  patents 76 

decrees  payment  of  subscription  for  stock,  for  the  benefit 

of   creditors    246 

aids  stockholders  in  securing  his   rights 241-245 

rules  in,  governing  the  transfer  of  stock 248, 249 

affords  relief   to   mortgagor 280 

foreclosure  of   equity  of   redemption  in 284,285 

remedy  of  landlord  in,  for  arrear  of  rent 300 

restrains   unauthorized   publication   of   letters 86 

enforces   specific   performance  of   contract 191 

EXPECTANCY  (see  Personal  Property), 

personal  property  in,  now  recognized 27, 28 

EXCLUSIVE, 

exclusive  right  of  property  defined 1 

EVICTION    (see  Rent), 

when  a  defense  to  an  action  for  rent 301, 302 


316  INDEX. 

[References   are   to   pages.] 

F. 

FEUDAL  (see  Estate,  Real  and  Personal), 

distinction  between  feudal,  and  allodial,  tenure 25,26 

FIXTURES, 

defined     7, 8 

ambulatory ;    sometimes    real    and    sometimes    personal, 

property     7, 8 

conditions  that  may  determine  which 8 

rules   for  guidance  in  determining 8,  9 

annexation  to  the  soil,  actual,  or  constructive 8, 9 

character  of,  affected  by  the  parties  interested 10 

time  of   removal 10, 11 

as  subjects  of  chattel  mortgages 276,  277 

FORECLOSURE  (see  Mortgages), 

of  the  equity  of  redemption 243 

FORFEITURE, 

definition,  and  examples  of 98,  99 

law  of  in  England,  and  in  the  United  States 99 

when  title  passes  by 99.  100 

forfeiture  for  crime  limited  in  the  United  States 99 

of  stock  for  non-payment  of  subscription 243 

forfeiture  odious  in  law 100 

FRAUD, 

vitiates    title    to    trade-mark 93, 94 

affects  the  validity  of  patents 73,  74 

its  effect  upon  wills 129 

vitiates  contracts  of  sale 160-166 

impeachment  of  judgments  for 260, 261 

FRUITS  OF  THE  EARTH   (see  Accession), 

title   to,   by   accession 61 

FURNITURE  (see  Church  Furniture). 


G. 

GIFTS  INTER  VIVOS, 

definition,  and  subjects  of 116,  117 

delivery   essential    117,  118 


INDEX.  317 

[References   are   to   pages.] 
GIFTS  INTER  VIVOS— Continued. 

may  be  constructive  or   symbolical,  or  to  a  third  per- 
son      117 

debt  due  from  donee  to  donor  subject  of  a  gift  to  the 

former     117 

donor  may  make  himself  trustee  of  the  gift 117 

gift  of  a  chose  in  action  by  assignment 118 

stolen   goods  not   the   subject  of   a  gift  as   against  the 

owner   118 

gifts  prejudicial  to  the  rights  of  creditors  invalid 118 

gifts  on  condition,  with  reservation,  or  in  trust 119 

gifts  between  parent  and  child 119 

a  gift  ordinarily  not  presumed 120 

gifts  between  husband  and  wife 120 

when  upheld  in  equity 120 

gifts,  when  revocable,  and  when  irrevocable 120 

GIFTS  CAUSA  MORTIS, 

defined     121 

law  of,  derived  from  the  civil  law 121 

occupy   middle   ground    between    gifts    inter    vivos,    and 

legacies    121,  122 

essentials  to  gifts  causa  mortis 122,  123 

donee  derives  title  directly  from  donor 123 

delivery  essential  123 

distinction    between    delivery    to    agent    of    donor,    and 

a  trustee  of  the  donee 123 

revocation  of;  not  revoked  by  donor's  subsequent  will..    124,125 

GOODS  LOST  OR  ABANDONJiD, 

the  finder  acquires  title  by  occupancy 54 

owner's  title  and   rights  not  lost   until  he  abandons   the 

intention  of  reclaiming  his  goods 54 

the  finder,    if   he   knows    the   owner,    and    conceals    the 

finding,  may  be  held  guilty  of  larceny 54,  55 

acquisition   of   title   by   finding  limited   to   goods   on   the 

earth's  surface;  not  applicable  to  treasure-trove 55 

stolen  corporeal  property  recoverable  by  the  owner,  even 

from  a  bona  fide  purchaser 55 


318  INDEX. 

[References    are    to   pages.] 

GOODS  LOST  OR  ABANDONED— Con^inMerf. 

a  different  rule  applies  to  money,  bank  notes,  and  current 

negotiable    securities    56 

duties  of  the  finder,  compensation,  etc 56 

title  not  acquired  by  tortious  conversion 64,  65 

GOODS,   WARES,   MERCHANDISE,   EFFECTS,  AND 
CREDITS, 

meaning,  and  use,  of  the  terms 26, 27 

GRANT, 

of    burial    lot    in    a    churchyard,     or     public     cemetery, 
generally    an   easement 20 

H. 

HEIR-LOOM, 

character,  and  law  of,  defined 16 

examples  of    17 

do  not  pass  by  devise  or  bequest  separate  from  the  free- 
hold ;  the  reason 17 

HONEY-BEES, 

property  in,  and  rules  governing 59 

HUSBAND  AND  WIFE  (see  Marriage), 

wife's  chattels  transferred  to  husband  by  marriage....  113 

law  in  regards  to  gifts  between 120 

HYPOTHECATION    (see  Bottomry,  and  Respondentia, 
Bonds), 

master,  or  owner,  may  hypothecate  ship,  or  cargo 286,287 

by  master,  does  not  transfer  property  of  the  ship 288 

I. 

INDORSEMENT, 

title  by,  and  sale  of  negotiable  instruments 194, 195 

INFANT, 

testamentary  capacity  of    127, 128 

competency    to    contract 134 

INJUNCTION, 

unauthorized  publication  of  letters  restrained  by 85,  86 

violation  of  proprietary  right  in  lectures  restrained  by . .  89 


INDEX.  319 

[References    are    to   pages.] 

INJUNCTION— Conhnti^rf. 

infringement  of  trade-marks  restrained  by 89 

husband  sometimes  restrained  from  recovering  property 
of  wife  in  an  action  at  law 115 

INSOLVENCY, 

meaning  of  the  terms  insolvency,  and  bankruptcy 108 

distinction  between  bankrupt,  and  insolvent,   laws 109,110 

general  purposes,  and  effect,  of  insolvent   laws 110,111 

United  States  bankrupt,  and  insolvent,   laws Ill 

limitations  of  the  power  of  the  States  to  make 112 

when   statutes  of   the  United   States  and  of   the   States 
conflict,   the  latter   are  suspended,   but   not   abrogated 

by  an  act  of  Congress 112 

the  classes  of  persons  embraced  by  insolvent  laws 110 

INSURANCE, 

defined,   and  terms   employed 206, 207 

nature,  and  form,  of  the  contract 207-209 

the  several  classes  of  policies  defined 209-211 

consummation    of    the   contract 211-213 

what  constitutes  delivery 213,  214 

subject-matter  of  the  contract 214 

insurable  interest    214-216 

warranties,  and  representations ;    two    classes    of    each, 

affirmative   and   promissory 216-219 

special  provisions  of   the  contract 219-222 

limitation  of  time  for  commencing  an  action  on  the  policy  220 

provision   for  arbitration,  to  what  extent  binding 220,221 

mutual   insurance    222-224 

INTENTION, 

of   parties  a   factor   in  determining  the  character  of   a 

thing  as  a  fixture,  or  otherwise 9 

as  affecting  question  of  a  transfer  of  title 153,  154 

INTEREST  (see  Joint  Owners), 

interest   policy  of   insurance 211 


320  INDEX. 

[References    are    to   pages.] 
INTESTACY, 

definition,  history,  and  incidents  of 105-108 

where  title  to  intestate's  property  rests  intermediate  his 

death,  and  the  appointment  of  an  administrator 105-108 


J. 

JOINT  OWNERS, 

joint-ownership   defined,    and   the   unities   constituting   it 

explained   29 

rules  appertaining  to  the  relation 29-31 

each  entitled  to  an  equal  share  of  the  rents,  income  and 

profits,  during  his  life 30 

possession  of  one,  the  possession  of  all 31 

joint-ownership,  how  severed 31 

partners  joint  owners  of  their  stock  in  trade  and  eflfects, 

but  without  the  right  of  survivorship 36 

JOINT-STOCK  COMPANIES, 

defined ;  in  what  respects  like,  and  in  what  unlike,  cor- 
porations,   and    partnerships 42,  43 

business  managed  by  officers  and  agents 45 

may  take,  hold,  and  alien,  property,  real,  and  personal..  45 

are  regulated  by   statute 43 

JOINT  TENANTS   (see  Joint  Owners), 

each  may  distrain  for  the  whole  rent  in  arrear 313 

JUDGMENT    (see  Debts), 

defined,  and  classified   102,  103 

whether  judgments  are  contracts 102,  103 

what,  and  when,  judgments  transfer  title 103-105 

authority  of  a  judgment  roll  of  a  court  of  record 260,261 

impeachable  for  want  of  jurisdiction,  or  fraud 260, 261 

distinction   between   courts    of    general,    and    of    special, 

jurisdiction    260,  261 

as  to  impeachment  of  foreign  judgments 261,  262 

effect  of,  as  res  judicata 264, 272,  273 

JURISDICTION   (see  Debts— Judgment), 

impeachment  of  judgments  for  want  of 260-262 


INDEX.  321 

[References    are    to   pages.] 

L. 

LANDLORD  AND  TENANT  (see  Rent), 

question  of  fixtures  between 10 

landlord's  remedies  for  rent  in  arrear 292-302 

LARCENY, 

finder  of  lost  goods  may  become  guilty  of 54,  55 

LAST  WILL  OR  TESTAMENT   (see  Title  by  Will  or 
Testament). 

LECTURES, 

product   of   intellectual   labor 87,  88 

their  creator  has  a  common-law  proprietary  right  in  them  88 

the  right  not  lost  by  oral  delivery 88 

as  to  rights  of  persons  admitted  to  hear  public  lectures  88 

the  same  rules,  substantially,  apply  to  playright 88,  89 

statutes  in  England,  and  in  the  United  States 89 

remedies  for  violation  of  the  right 89 

LEGACIES, 

likeness,  and  unlikeness  to  gifts  causa  mortis 121 

the    several   kinds    126 

defined,  and  classified   225-227 

minor   divisions,   rules,  and  incidents 227-231 

residuary  legacy    228 

vested,   and   contingent,    legacies 228, 229 

absolute,   and  conditional,   legacies 229, 230 

lapsed  legacies  230, 231 

abatement  of    231, 232 

ademption  of    232, 233 

payment,  and  satisfaction,  of 233-235 

LETTERS      BETWEEN      CORRESPONDENTS— Con- 
tinued 
products  of  intellectual  labor,  and  subjects  of  property  85 

respective  rights  of  the  writer,  and  receiver 85 

unauthorized    publication    of,    restrained   by   a    court   of 

equity     86 

21 


322  INDEX. 

[References   are   to  pages.] 

LETTERS     BETWEEN    CORRESPONDENTS— ConfU 
every  letter,  in  contemplation  of  law,  has  literary  merit, 

in  which  a  property  right  exists 87 

the  receiver  has  a  corporeal  property  in  the  material 
on  which  the  letter  is  written,  and  the  right  to  its 
possession    87 

LIEN   (see  Sales), 

vendor's  lien  on  sale  of  goods 176 

corporation's   for   debt  of  share-holder 249 

stock  in  hands  of  vendee  may  be  subject  to  a  corporatt 

lien  for  debt  of  vendor  to  the  company 249 

LIMITATIONS, 

of  absolute  ownership  3, 4 

common  law,  and  statutory,   limitations 198-200 

when  the  period  of  limitation  begins  to  run 200,  201 

debt  barred  by  statute  revived  by  new  promise 201-205 

no   new    consideration    requisite 204 

revival  of  barred  debt  by  acknowledgment 202-204 

effect  of  part  payment 203 

limitation   affects   the   remedy,   only 204 

limitation  of  action  on  policy  of  insurance 220,  221 

on  deposit  notes  in  mutual  insurance  company 223,  224 

M. 

MANURE, 

when  real,  and  when  personal,  property 17,  18 

payment   by    183, 184 

oflfer  by 135 

MARITIME, 

right  of  seizure  of  enemies'  goods  in  war 51-53 

MARITIME  INTEREST, 

extra  interest  for  loan  of  money  on  bottomry,  or  re- 
spondentia, bonds    285 

MASTER  OF  SHIPS   (see  Bottomry  and  Respondentia, 
Bonds), 
personally  bound  on  bottomry  bond  executed  by  him ....  288 


INDEX.  323 

[References    are    to   pages.] 
MARRIAGE, 

transfers  wife's  chattels  to  husband 113 

husband's  right  to  wife's  choses  in  action,  and  how  to 

obtain  absolute  title,  and  possession 113 

they   belong   to   the   wife   in    her   own    right,    when   the 

husband  dies  before  reducing  them  to  possession 114 

when  husband  can  gain  possession  only  through  adminis- 
tration of  wife's  estate 114 

no  unjust  discrimination  in  law  against  the  wife 114 

marriage    lays   burdens    upon   the   husband,    from   which 

the  wife   is   relieved 1 14,  1 15 

marital  unit  broken  into  fractions  by  modern  legislation  115 

marriage,  as  affecting  wills 131 

MATERIALS, 

title    by   accession    on    union    of    materials   of    different 
persons  62-65 

MAXIMS, 

usquce  ad  ca^lium;  usquce  ad  inferos 2 

sic  utere  tuo  tit  alienum  non  Icedas 3 

salus  populi  suprema  lex 4 

vigilantibus ,  non  dormicntihus ,  leges  subveniunt 96 

cessante  ratione  legis,  cessat  et  ipsa  lex 62,  158 

qui  prior  est  in  tempore,  prior  est  in  jure 70 

ignorantia   juris   neniinem    excusat 157 

caveat  emptor    161 

simplex  commendatio  non  obligat 161 

MERCHANTABILITY   (see  Sales), 

warranty  of    in   sales 171 

MERCHANDISE  (see  Goods,  Wares,  Merchandise,  Etc.). 

MISTAKE  (see  Sales), 

mistake  of  fact  negatives  assent 136 

its  effect  in  avoiding  contracts 157,  158 

MOBILITY  (see  Real,  and  Personal  Property), 

the  principal  characteristic  of  personal  property 5, 6 

MODE, 

modes  of  acquiring  title  classified  and  analyzed 46, 47 


324  INDEX. 

[References   are    to   pages.] 
MONEY, 

a  price  in,  paid  or  promised,  essential  to  a  sale 138 

what  constitutes  a  good  tender 185 

"money"  defined    254 

constitutional  money    254-257 

the   "Legal  Tender  Acts" 255,256 

the    States   may  prescribe   the   currency   in   which   debts 

due  them  for  taxes  may  be  paid 257 

creditors  may  stipulate  in  contracts   in  which  debts  due 

them  thereunder  shall  be  paid 257 

subject  to  levy  under  execution 257, 258 

stolen,    not    recoverable    by    owner     from    a    bona  fide 

purchaser  57 

MONUMENTS   (see  Mortuary  Property), 

personal  property  of  holder  of  the  burial  lot 20 

MORTGAGES, 

definition,  and  essential  elements  of 274 

formal   requisites  of    274-276 

parol  chattel  mortgages  valid  at  common  law 275 

writing  generally  required  by  statute 275 

separate,  and  parol,  defeasance 275,  276 

subjects  of  chattel  mortgage 276-278 

fixtures  may  be  277 

possession  of  the  mortgaged  property 279 

distinguished  from  a  pledge 280,  281 

from  a  conditional  sale  with  the  right  to  re-purchase..  283 

relief  in  equity  for  the  mortgagor 282 

foreclosure  of  the  equity  of  redemption 284, 285 

MORTUARY  PROPERTY, 

kinds,  legal  rules,  and  burial  rights 20,  21 

grant  of  a  burial  lot  generally  an  easement  only 20 

vaults,  monuments,  and  decorations  of  the  grave,  personal 

property  of  the  holder  of  the  lot 20 

a  quasi  property  in  a  corpse,  giving  relatives  the  right  of 

custody    and    control 20,  21 

to  whom  the  right,  and  place  of,  burial  belongs 21 


INDEX.  325 

[References    are    to   pages.] 

N. 

NEGOTIABLE  SECURITIES  (see  Indorsement). 

title  of  a  bona  fide  purchaser  protected 56 

sale  of,  and  indorsement 194,  195 

NEW  PROMISE  (see  Limitations), 

revives  debt  barred  by  the  statute 201, 202 

NOTE,  ETC.   (see  Sales), 

requisites  under  Statute  of   Frauds 149 

NOVATION  (see  Debts), 

defined,  and  discharge  of  debt  by 272 


o. 

OCCUPANCY, 

the  first  known  method  of  acquiring  title 48-51 

foundation  of   the   right   of   private  property 48-51 

property  acquired  by  appropriation 51 

right  of   possession  originally  limited  to  act  of  posses- 
sion      50 

title  by  capture  in  war 51-53 

maritime   right  of   seizure 51,  52 

of  goods  lost  or  abandoned 54-57 

title  by  finding  not  extended  to  treasure-trove 55 

finder's  duty  to  take  proper  care  of  the  goods 56 

waifs,  what  they  are,  and  the  law  of 57 

reclamation   of    animals   ferce   natures 58-60 

dividing  line  between  wild,  and  tame 59 

honey-bees,  property  in,  and  law  governing 59 

title  by  accession,  and  confusion  of  goods 60,  61 

title  to  fruits  of  the  earth 61 

title  to  increase  of  animals 61,  62 

materials  of  different  persons  united 62  65 

respecting   materials   wrongfully   converted 64,65 

title  to  products  of  intellectual  labor 66 

patents  for  inventions  and  designs 66-76 

copyright,  the  law  of 76-85 

letters  between  correspondents   85, 86 

lectures,  property  and  rights  of  authors  in 87-89 

trade-marks,   the   law  of 89-97 


326  INDEX. 

[References    are    to    pages.] 

OFFER  (see  Sales), 

different  modes  of,  and  acceptance 135,  136 

under  the  Statute  of  Frauds 145-147 

OFFICERS, 

of  corporations,  authority  and  power  of 39,  40 

of  joint-stock  companies    42, 43 

ORGANIZATION. 

liability  of  stockholders  in  case  of  defect  in 246, 247 

OWNER, 

of  stolen  corporeal  property  may  recover  it,  even  from  a 

bona  fide  purchaser 55 

not  so  in  respect  to  money,  bank  notes,  and  commercial 
paper  indorsed  in  blank,  or  payable  or  indorsed  to 
bearer    56 

OWNERSHIP  IN  COMMON  (see  Tenants  in  Common) 

defined,  and  how  differing  from  joint-tenancy 31,32 

incidents  and   rules  of 32, 33 

P. 

PARENT  AND  CHILD, 

gifts  between  119 

PARTIES, 

how  question  of  fixtures  affected  by 10, 11 

competency    to   contract 134 

testamentary  capacity    127-129 

PARTNERS, 

definition,  and  leading  characteristics,  of 35 

joint  owners  of  their  stock  in  trade  and  effects,  but  with- 
out  survivorship    35 

on   dissolution    of    partnership   they    become    tenants    in 

common  of  the  partnership  property 36 

death  of  one  works  a  dissolution  of  the  partnership....  36 

his  interest  passes  to  his  personal   representatives,   who 

become  tenants  in  common  with  the  survivors 36 

the  survivors  have  the  exclusive  right  to  the  possession 
of  the  partnership  property,  for  the  purpose  of  clos- 
ing up  the  affairs  of  the  concern,  and  adjusting  the 
equities ;  but  they  hold  the  property  as  trustees 36 


INDEX.  327 

[References    are    to    pages.] 
PARTNERS— Continued. 

real  estate  of  the  partnership  treated  in  equity  as  per- 
sonal   property    36, 37 

each  partner  is  the  agent  of  all 37 

as  to  his  authority  to  assign  partnership  property,  with- 
out consent  of  his  co-partners 37 

interest  of  each  partner  in  the  tangible  property  liable 

to  sale  on  execution  for  payment  of  his  debts 37,  38 

the   purchaser    becomes    a   tenant    in    common    with    the 

other    partners    37, 38 

PAROL, 

chattel  mortgages   when   valid 274, 275 

as  to  parol  defeasance  of  mortgages 275 

PART-OWNERS  OF  SHIPS, 

their    relation    defined,    and    distinguished    from    joint 
owners ;  generally  tenants  in  common  of  the  ship,  and 

may  be  partners 34,  35 

PATENTS, 

title  to  by  original  acquisition 66,  67 

defined,  and  policy  of  the  law  of 67,  68 

contract  between  the  inventor   and  the   State 67 

subject  of,  regulated  by  statute 67,  68 

essentials  in  a  patentable  invention 68-71 

mode  of  obtaining,  and  conditions  of,  a  valid  patent...  72-74 

other  points  in  the  law  of  patents 74,  75 

PAYMENT, 

by  note  or  bill 180 

by  check  or  draft 182 

in  counterfeit  or  worthless  bills 182,  183 

in  specific  articles    183 

in  "Legal  Tender"  notes 255-257 

payment   by  mail    183,  184 

on  Sunday,  effect  of   185 

part  payment  under  Statute  of  Frauds 148,  149 

payment  by  vendee  on  sale  and  purchase 180 


328  INDEX. 

[References    are    to    pages.] 

PAYMENT— CotUinued. 

debt  barred   by  statute   of    limitations,   revived  by   part 

payment   203-205 

payment  of  legacies 233-235 

appropriation  of  payments 184 

PERFORMANCE, 

specific  performance  of  contracts  of  sale 191 

delivery,  in  performance  of  the  contract 172-176 

PERSONAL  PROPERTY, 

its  characteristics ;  mobility  the  leading  one 2,  5 

change  from  personal  to  real,  and  vice  versa 5 

duration  of  enjoyment  an  element  in 6 

real  estate  of  a  partnership  treated  as  personal  property 

in  equity    36, 37 

brain  products,  personal  property 66 

patents  for  inventions  and  designs 66,  67 

letters  between  correspondents 85, 86 

personal  property  in  expectancy 27 

statutes  against  perpetuities  apply  to 27,28 

wife's  personal  property  transferred  to  her  husband  by 

marriage,  at  common  law 113 

devolution  of,  on  death  of  the  owner 305,  306 

PEW  (see  Church  Furniture), 

rights  of  pew-holder 19, 20 

PLEDGE  (see  Mortgage), 

as  distinguished  from  a  mortgage 280,  281 

liability  of  pledgee  of  stock 248, 249 

POSSESSION, 

one   of   the   unities   constituting   joint-ownership 29 

possession  of  one  the  possession  of  all 31 

the  only  unity  in  a  tenancy  in  common 31, 32 

right  of  possession  originally  limited  to  act  of  possession  50 
transfer  of  title  and  possession  an  advance  step  in  the 

history  and  rights  of  property 50,  51 

of    mortgaged    property 279, 280 

PRESUMPTION, 

a  gift  not  ordinarily  presumed 119 


INDEX.  329 

[References    are    to   pages.] 

PRODUCTS, 

of  the  brain,  title  to  by  accession 66 

of  the  fruits  of  the  earth,  title  to 61 

what  products  a  tenant  may  remove 12 

PROMISE  (see  Limitations), 

new,  to  revive  debt  barred  by  the  statute 201-205 

PROPERTY, 

the  term  defined,  and  its  uses 1,2 

distinction  between  real,  and  personal 2,  5 

absolute,  and  qualified,  defined 3 

limitations  of  absolute  ownership 3,  4 

property  in  brain  products 66 

in  patents   for  inventions  and  designs 66,  67 

in  letters  between  correspondents 85,  86 

in  lectures  87,  88 

in  trade-marks   89,  90 

quasi  property  in  a  corpse 20 

quahfied,  in  captured  wild  animals 58-60 

absolute  property  in  a  thing  essential  to  a  sale 136 

general  property  in  bailor,  special,  in  bailee 196,197 

R. 

REAL  PROPERTY  (see  Real,  and  Personal,  Property), 

defined,  and  what  it  includes 2 

RECEIVER, 

in  bankruptcy  of  a  stockholder,  power  and  duty  of 246 

RECLAMATION   (see  Animals), 

a  remedy  of  vendor  on  sale  of  goods 188, 189 

RE-INSURANCE   (see  Insurance), 

RELEASE  (see  Debts), 

discharge  of  debts  by 269-271 

REMEDIES, 

for  infringement  of  copyright   84 

for  infringement  of  a  patent  84 

for  violation  of  author's  right  in  his  lectures 89 

for  infringement  of  a  trade-mark  96, 97 

restraining  the  unauthorized  publication  of  letters 85 

of  vendee  on  purchase  of  goods 190-192 


330  INDEX. 

[References    are    to   pages.] 
REMEDIES— CoM^mw^d. 

of  vendor  on  sale  of  goods 186-189 

of  a  corporation  against  a  stockholder 242,243 

of   mortgagor   in   equity 282 

of  holder  of  bottomry  bond  in  a  court  of  Admiralty....  288 

landlord's  remedies  for  rent  in  arrear 292 

RENT  (see  Landlord  and  Tenant), 

definition,    and   properties   of 290 

the  kinds  of  rent 291,  292 

landlord's  remedy  for  rent  in  arrear  by  distress 292-297 

essentials  to  the  right  of  distress,  and  incidental  rules..  293-297 

the  right  canceled  by  a  legal  tender 294 

not  extinguished  by  an  unsatisfied  judgment 293 

any  one  of  several  joint  tenants  may  distrain 294 

goods  and  chattels  distrained  must  be  safely  kept 296,  297 

landlord  may  have  an  action  of  debt  for  rent  due  and  in 

arrear   297. 29& 

an  action   of   covenant 298, 299 

an  action  of  assumpsit  299, 300 

or  a  suit  in  equity  in  some  cases 300 

tenant's  obligation  to  pay  rent 300-302 

apportionment  of  rent   302, 303 

REPRESENTATIONS   (see  Sale— Insurance), 

on  sale  of  goods 160-162 

in  contracts  of   insurance 216-218 

two  classes,  affirmative  and  promissory 217 

RE-SALE  (see  Sales), 

when  vendor  may  re-sell 187, 188 

REVOCATION, 

wills,   how   revoked 130,  131 

of  gifts  inter  vivos,  and  catisa  mortis 120, 124 

s. 

SALES, 

defined ;  elements  of  a  valid  sale 132, 133 

parties  cempetent  to  contract 134 

mutual   assent    134, 135 


INDEX.  331 

[References    are    to   pages.] 

SALES — Continued. 

offer  and  acceptance 135,  136 

withdrawal  of  oflfer  before  acceptance 136 

mistake  of  fact  negatives  mutual  assent 136 

subject  of   the  sale 136,  137 

vendor  must  have  an  absolute  property  in 136, 137 

must  have  an  actual,  or  potential,  existence 137 

a  price  in  money,  paid  or  promised 138 

the  contract  as  affected  by  the  Statute  of  Frauds 138-149 

it  embraces  both  executory,  and  executed,  contracts....  139 

contracts  not  embraced  in  it 140, 141 

what  embraced  in  "goods,  wares,  and  merchandise" 141,  142 

statutory   limit  of   "£10  and  upwards" 143,144 

acceptance  and   receipt 145-147 

"earnest,  or  part  payment" 148,  149 

"note  or  memorandum  in  writing" 149 

contracts  in  respect  to  passing  title 152-157 

intention  of  the  parties 153,  154 

delivery  as  related  to  transfer  of  title 154,  155 

sale  of  specific  goods  unconditionally 155 

of  specific  chattels  conditionally 155, 156 

of   goods  not  specific 156, 157 

appropriation  on  sale  of  goods  not  specific 157 

failure  of  consideration 157, 158 

illegality  of   consideration 159,  160 

fraudulent  sales,  voidable 160 

misrepresentation,  or  concealment 160-162 

intent  to  deceive  an  essential  element 162 

reliance  upon  representations,  and  damage 162,163 

fraud  on  vendor 163-165 

on  creditors 165, 166 

illegal  contracts  of  sale 166,  167 

conditions,  and  conditional  sales 167, 168 

warranties   on   sales 169-172 

in  sales  by  sample 171 

in  sales  by  description 171 

as   to    merchantability 171 

fitness  for  a  particular  use 171 


332  INDEX. 

[References    are    to   pages.] 

SALES — Continued. 

in    sale   of   provisions 171,172 

of  commercial  paper 172 

delivery  in  performance  of  the  contract 172, 173 

how,  and  where,  delivery  to  be  made 173, 174 

delivery  to  a  common  carrier 174 

kinds  of  delivery,  quantity,  and  time  of 174,  175 

acceptance,  the  complement  of  delivery 175, 176 

the    vendor's    lien 176 

stoppage    in    transitu 176-179 

tender  by  the  vendee 179, 185, 186 

remedies  of  the  vendor 186, 187 

reclamation  of   the   goods 188 

actions  by  the  vendor 189 

remedies  of  the  vendee 190-194 

specific   performance  of   the  contract 191 

SAMPLE  (see  Sales), 

warranty  on  sales  by 171 

SATISFACTION, 

of   legacies    233-235 

of   debts    266,267 

SEAMEN, 

wages   of,   preferred  claims 288 

SHARES     (see    Stock    and    Stockholders — Distributive 
Shares). 

SHIP  (see  Bottomry  and  Respondentia,  Bonds), 

relation    of    part-owners   to   each   other,    and    to    third 

persons     34, 35 

property  in,  not  transferred  by  hypothecation 288 

STATUTE  OF  FRAUDS  (see  Sales), 

effect  of,  in  contracts  of  sale 138, 139^ 

STOCK, 

what  it  embraces  in  corporations 41, 237 

stock,   and   shares  of    stock,   defined 237-239 

rights  of  a  shareholder  summarized 238,  239 

acquisition  of  title  by   subscription 239,240 

by    a    transfer 241 

liability  of  stockholder  to  the  company,  and  its  creditors  241-245 


INDEX.  333 

[References    are    to   pages.] 

STOCK— Continued. 

subscription,  a  contract  to  pay  on  "calls" 242 

remedies  of  company  for  unpaid  subscriptions 243-245 

statutory  liability  of   a  stockholder 245, 246 

stock  notes  in  mutual  insurance  companies 223, 224 

STOLEN  PROPERTY, 

stolen  corporeal  property  recoverable  by  the  owner,  even 

from  a  bona  fide  purchaser 55 

a  different  rule  obtains  in  respect  to  money,  and  negotiable 

commercial    paper    56, 57 

not  the  subject  of  a  gift  as  against  the  true  owner 118 

stolen  goods  of  a  foreign  merchant  not  deemed  waifs..  57 

STOPPAGE  IN  TRANSITU   (see  Sales), 

a  remedy  of  vendor 176,  179 

SUBSCRIPTION, 

for  stock,  rights  and  liabilities  of  subscriber 239-251 

SUCCESSION   (see  Corporations), 

definition,   and  kinds 100, 101 

common  law   succession 101,  102 

in  corporations   aggregate 101 

when  it  exists,  and  when  not,  in  sole  corporations 102 

SUNDAY, 

effect  of   payment  on 185 

SURVIVORSHIP  (see  Joint  Owners), 

a  characteristic  of  joint-ownership 30 

does  not  belong  to  ownership  in  common 32 

T. 

TENANT    (see    Emblements — Landlord    and    Tenant — 
Rent), 

question  of  fixtures  between  landlord  and  tenant 10 

removal  of  fixtures  by  tenant 10, 11 

what  products  tenant  may  remove 12 

who,  and  when,  entitled  to  remove  products 13-15 

relation  and  rights  of  tenant  in  common 32-34 

obligation  of  tenant  to  pay   rent 300-302 

when  eviction  a  defense  to  an  action  for  rent 300-302 


334  INDEX. 

[References   are   to  pages.] 

TENANTS  IN  COMMON  (see  Ownership  in  Common), 
partners  are,  of  the  partnership  property,  on  a  dissolu- 
tion of  the  partnership 36 

purchaser   of   a   partner's   interest  becomes   a   tenant   in 
common  with  the  other  partners Z7 

TENDER  (see  Sales — Money), 

by  vendee  on  purchase  of  goods 179, 180 

the  requisites  of  a  good  tender 185,  186 

as  to  the  effect  of  the  "Legal  Tender"  Acts 255-257 

right  of  distress  canceled  by  a  legal  tender 294 

TESTAMENT   (see  Last  Will  or  Testament). 

TIME, 

one  of  the  utilities  in  joint  ownership 29 

for  the  removal  fixtures 10, 1 1 

of  noting  contract  under  Statute  of  Frauds 149,  150 

of  delivery  on  sale  of  goods 174 

time-policy  of  insurance 211 

limitation  of  time  for  commencing  actions 200, 201 

TITLE, 

modes  of  acquiring  title  to  personal  property  classified 

and  analyzed    46, 47 

one  of  the  unities  in  joint-ownership 29 

cannot  be  acquired  by  a  willful  tort 65 

when  title  passes  in  case  of  forfeiture 98 

when  a  judgment  transfers   title 99,100 

legal  title  of  intestate's  property  in  the  administrator..  108 
wife's   title  to  her  chattels  transferred  to  her   husband 

by  marriage   113 

title  by  will  or  testament 125-132 

methods  of  acquiring  title  to  stock 239, 240 

title   by   assignment 195 

by  indorsement    194,  195 

by  bailment    196,  197 

by  finding   54-56 

where   title   to   intestate's    goods    rests    intermediate    his 

death,  and  the  appointment  of  an  administrator 105,109 


INDEX. 

[References    are    to   pages.] 


335 


TORTS, 

damages  for  injuries  resulting  from 104, 105 

wrong  doer  not  allowed  to  profit  by  his  tort 104 

TRADE-MARKS, 

defined    89,90 

on 
in  what  sense  property 

how  differing   from  copyright 90 

a  common  law  right 90,  Vl 

what  may,  and  what  may  not,  be  adopted  and  used  as 

a  trade-mark    91,92 

by  whom,  and  how,  acquired 92-95 

freedom  from  fraud 93,  94 

title  to,  will  pass  by  operation  of  law 95 

what  constitutes  an  infringement 96, 97 

TRUST, 

survivors  of  a  deceased  partner,  trustees  of  the  partner- 
ship property   '^'^'^ 

executors  and  administrators  hold  decedent's  property 
intrust    108 

assets  of  a  corporation,  on  dissolution,  a  trust  fund  for 
the  benefit  of   creditors 251,252 


V. 

VAULTS   (see  Mortuary  Property), 

when,  personal  property 

VENDOR  AND  VENDEE  (see  Sales), 

question  of   fixtures  between 

fraud  on  vendor  in   sales 163-165 

when,  and  when  not,  an  implied  warranty  in  a  sale  of 

personal  property    1"^.  1^0 

duty  of  vendor  to  deliver  when  the  sale  is  complete 1/2 

his  lien  on  a  sale  of  goods 176,  186, 187 

right  of  stopagge  in  transitu 176,  177,  188 

tender  by  vendee  on  purchase  of  goods 179, 180 

special  damages  for  breach  of  contract 191 

VOLUNTARY, 

meaning,  as  generally  used  in  the  law 116 


336  INDEX. 


[References    are    to   pages.] 

VOYAGE   (see  Insurance,  Bottomry,  and  Respondentia 
Bonds). 


w. 

WAIFS, 

stolen    goods,    waived    or   thrown    away    by    a    thief    in 

his  flight   57 

if  seized  before  the  owner   reclaims  them  he  loses  his 

title   57 

to    whom    the    title    passes,    and    how    the    owner    may 

regain  his  goods 57 

stolen  goods  of  a  foreign  merchant,  not  deemed  waifs..  57 

WAGER-POLICY   (see  Insurance), 

a   wager-policy   invalid 210 

WARES  (see  Goods,  Wares,  and  Merchandise,  Etc.). 

WARRANTY  (see  Sales— Insurance), 

several  kinds  in  sales 169-172 

on  sales  by  sample 171 

by   description    171 

of  merchantability 171 

of  fitness  for  a  particular  use 171 

in  sale  of  provisions 171,  172 

of  commercial  paper 172 

when  there  is,  and  when  not,  an  implied  warranty  of  title 

in  a  sale 170 

remedies  of  vendee  for  a  breach  of 192 

warranties  in  contracts  of  insurance 216,217 

WAR   (see  Capture), 

seizure   and   confiscation   of    enemies'   goods    in    time   of 
war   5 1-53 

WIFE   (see  Marriage,  Husband  and  Wife). 

WILL  (see  Title  by  Will  or  Testament), 

of  donor  does  not  revoke  a  gift  causa  mortis 124, 125 

title  by,  derived  immediately  from  testator 124, 125 

will  or  testament  defined 127 

testamentary  capacity    127-129 

written,  and  unwritten,  wills 130 

revocation   of    wills 130, 131 

when  the  will  takes  effect 132 


I 


hAW  LIBRARY 

UNIVERSITY  OF  CALIFORNU 

IX)S  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  836  845    8 


